bupreme court - california

BUPREME COURT

IN THE StJPREl\'!E COURT OF TIlE STA.TE OF CALIFORNIA.

PEOPLE OF THE STA:l'E OF CALIFORNIA.

CHRISTOPHER C:JIARLES LIGHTSEY

Suprernr~Court.No, 5043440

Kern CountySupt'rior CourtNo. 56801

APPELLANT~SRLPLYERfEl"

HO:NORAHLE JOlIN KELLY.

BRIEN, LARSON, ESQ.Calif<>rnia State Bur 1'<0. 178592

Lw/ Otrice of E, lvnch(lt~1 LiuscheidE.Mkh~d Linfch:.')id (eSS 221010}345 FrankEn Stn:.~(~ t

San Francisco~ Ci\ 94102'rel.: (415} 782,,6002Fax: {4 L5} 241 y THO

Mfd<UEL· ,L HAGLJ\i'>,nS. ESQ.C'lli.h)(nL.\ Si}~k 1h.r Nt). 1.1127(:=

Lav,' Office of :Vfa.Hu:J J. Ha.ghrnisP3-:\ Box 70003SSan Ju::,c"CA 95170Tel: (408) 44«39:1.7r:[~{~{: (-4{}8) 44()v3987

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CHHJSTOPHER CHt<F,.LES LIGHTSE'\'

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff and Respondent,

v.

CHRISTOPHER CHARLES LIGHTSEY

Defendant and Appellant.

Supreme CourtNo. S048440

[Capital Case]

Kern CountySuperior CourtNo. 56801

APPELLANT'S REPLY BRIEF

Automatic Appeal

HONORABLE JOHN KELLY.

ERIK N. LARSON, ESQ.California State Bar No. 178592

Law Office of E. Michael LinscheidE. Michael Linscheid (CSB 221010)345 Franklin StreetSan Francisco, CA 94102Tel: (415) 782-6002Fax: (415) 241-7340

MANUEL J. BAGLANIS, ESQ.California State Bar No. 111270

Law Office of Manuel J. BaglanisP.O. Box 700035San Jose, CA 95170Tel: (408) 446-3987Fax: (408) 446-3987

Attorneys for AppellantCHRISTOPHER CHARLES LIGHTSEY

TABLE OF CONTENTS

TABLE OF AUTHORITIES xiii

REPLY TO RESPONDENT' S STATEMENT OF FACTS 1

1. Incomplete or Omitted Impeachment of ProsecutionWitnesses 2

a. Coroner 2

b. Daulong 2

c. Rowland 3

2. Defense Alibi Evidence 3

3. Respondent's Statement of Facts Violated AppellatePrinciples 6

ARGUMENT 7

I. MR. LIGHTSEY'S CONVICTIONS AND SENTENCE OFDEATH MUST BE REVERSED BECAUSE HE WASINCOMPETENT TO STAND TRIAL, AND BECAUSETHE COMPETENCY PROCEEDINGS IN HIS CASEWERE FATALLY TAINTED BY PROCEDURAL ERRORS ........ 7

A. Respondent's Contentions 7

B. The Trial Court Repeatedly Violated Statutory andConstitutional Rules Governing CompetencyProceedings 7

C. The Court Erred in the Competency Proceedings ofMarch, 1994 by Appointing Only One Expert and ByFinding Mr. Lightsey Competent Solely on the Basisof the Report of That Expert, Even Though the ExpertHad Not Conducted an Examination of Mr. Lightsey 8

1. The Trial Court Erred in Only Appointing OneExpert 8

2. The Trial Court Abused its Discretion inFinding Mr. Lightsey Competent on the Basis

ii

of the Report of an Expert Who Did NotConduct a Competency Evaluation 11

D. Judge Kelly Erroneously Refused to Declare a Doubtof Mr. Lightsey's Competence When Confronted withJudge Felice's Error in Appointing Only OneExaminer and With Additional Evidence of Mr.Lightsey's Incompetence 12

E. The Second Set of Competency Proceedings, Held InJuly of 1994, Was Jurisdictionally Defective, and theFinding of Competence Constitutionally Deficient,Because the Trial Court Permitted Mr. Lightsey toRepresent Himself After Declaring a Doubt of Mr.Lightsey's Competence Both to Assist Counsel and ToRepresent Himself; Because the Court MistakenlyBelieved that Both Experts Who Examined Mr.Lightsey Had Found Him Competent to Stand Trial;and Because the Court Permitted Mr. Lightsey toWaive His Right to a Hearing on His Competence inReturn for a Finding That He Was Competent 13

1. The Court Erred in Allowing Mr. Lightsey toRepresent Himself During CompetencyProceedings and to Waive His Right to JuryTrial While Unrepresented By Counsel 14

2. Judge Kelly's Finding That Mr. Lightsey WasCompetent to Stand Trial Was DeficientBecause He Did Not Understand That Dr.Velosa Had Concluded that Lightsey WasIncompetent 21

F. The Jurisdictional Defects of the CompetenceProceedings Were Not Cured by the SubsequentHearing On August 2, 1994 In Which the CourtPurported to Determine Mr. Lightsey's Competence toRepresent Himself 22

G. The Fourth Motion by Advisory Counsel Gillis andMr. Lightsey's Relinquishment of his Pro Per Status 25

H. The Court Erred in Refusing to Declare a Doubt of Mr.Lightsey's Competence During His Trial, Despite

iii

Obvious Indications That Mr. Lightsey Continued toBe Unable to Rationally Understand the Proceedingsor Cooperate with Counsel and Despite Evidence ThatHis Condition Was Deteriorating Over the Course ofthe Trial 27

I. These Errors Violated Mr. Lightsey's ConstitutionalRights 32

J. The Error Requires Per Se ReversaL 32

K. Conclusion 33

II. MR. LIGHTSEY'S CONVICTIONS AND SENTENCE OFDEATH MUST BE REVERSED BECAUSE THE TRIALCOURT PREJUDICIALLY ERRED IN REFUSING TOADMIT EVIDENCE OF HIS ALIBI.. 34

A. Respondent's Contention 34

B. The Trial Court Prejudicially Erred in Excluding theAlibi Transcript 34

C. Mr. Lightsey Repeatedly Raised the Issue ofAdmitting the Excluded Transcript, Preserving theIssue for Appellate Review 35

D. The Trial Court Erred in Excluding the Evidence 37

1. Violation of Equality of Arms Principles 37

2. The Evidence Was Not Speculative 38

E. The Error Was PrejudiciaL 41

III. MR. LIGHTSEY'S CONVICTION MUST BE REVERSEDBECAUSE THE TRIAL COURT PREJUDICIALLYERRED IN PROHIBITING THE IMPEACHMENT OF KEYPROSECUTION WITNESS KAREN LEHMAN 45

A. Respondent's Contention

B. The Trial Court Erred In Excluding the ImpeachmentEvidence 45

IV

1. The Trial Court Erred In Barring TheImpeachment Of Karen Lehman With Her PriorPenal Code Section 245(A)(l) Conviction ForAssault With A Deadly Weapon 46

2. The Trial Court Erred in Barring Evidence ThatKaren Lehman's Memory Was Impaired andDamaged by Drug Use 47

C. There Was No Waiver of the Violation of Mr.Lightsey's Constitutional Rights 51

D. The Error Was Prejudicial Requiring Reversal. 52

IV. THE TRIAL COURT COMMITTED REVERSIBLEERROR AND PREVENTED APPELLANT FROMPRESENTING HIS THEORY OF THE CASE, BYEXCLUDING ADMISSIBLE, RELEVANT, ANDEXCULPATORY EVIDENCE 54


B. The Trial Court Erred in Excluding This Evidence 54

1. Respondent's Argument. 55

2. The Constitutional Right to Raise a DefenseWas Violated By the Exclusion of the TwoStatements 56

C. The Error Was Prejudicial.. 59

V. MR. LIGHTSEY'S CONVICTION MUST BE REVERSEDBECAUSE THE PROSECUTOR VIOLATED THE TRIALCOURTS ORDER NOT TO MENTION MR. LIGHTSEY'SSTATUS AS A PRISONER, THEREBY CAUSINGMATERIAL PREJUDICE TO MR. LIGHTSEY BEFORETHE TRIER OF FACT 62


B. The Trial Court Erred in Failing to Grant a Mistrial asRequested by Defense Counsel 62

1. Respondent's Concessions 63

v

2. There Was No Waiver. 63

3. The Prosecutor Committed Misconduct 64

C. The Error Was Prejudicial, Requiring ReversaL 65

VI. THE TRIAL COURT PREJUDICALLY ERRED INFAILING TO PROPERLY INSTRUCT THE JURYREGARDING MR. LIGHTSEY'S ALIBI DEFENSE 67

A. Respondent's Assertions 67

B. The Trial Court Erred in Failing to Instruct the JuryWith the Requested Instruction 67

1. Respondent's Concessions 67


VII. MR. LIGHTSEY'S CONVICTION MUST BE REVERSEDBECAUSE THE TRIAL COURT PREJUDICALLY ERREDIN FAILING TO INSTRUCT THE JURORS TODISREGARD THE FACT THAT HE WAS VISIBLYSHACKLED THROUGHOUT HIS GUILT PHASEPROCEEDINGS 71


B. The Shackles Were Visible to the Jury During TrialRequiring Instruction Pursuant to CALJIC 1.04 71

1. Concessions by respondent 71

2. There was no waiver 73


VIII. THE TRIAL COURT'S RULINGS LIMITING THE SCOPEOF THE DEFENSE MENTAL HEALTH EXPERT'STESTIMONY DURING THE PENALTY PHASEVIOLATED MR. LIGHTSEY'S RIGHTS UNDER THEFEDERAL AND STATE CONSTITUTIONS ANDREQUIRE THE REVERSAL OF HIS JUDGMENT OFDEATH 76


vi

B. Relevant Proceedings 76

1. Testimony From Mr. Lightsey About TheCourt-Ordered Psychiatric Examinations AndHis Father 76

2. Testimony From Richard Lightsey, Mr.Lightsey's Youngest Brother, About TheirFather 80

3. Testimony From Dr. William Pierce About ThePsychiatric Reports And Mr. Lightsey's Father. ........ 81

4. The reports from Drs. Burdick, Manohara, andVelosa 90

C. The Trial Court's Rulings Restricted DefenseCounsel's Examination Of Dr. Pierce In A Way ThatViolated Mr. Lightsey's Federal And StateConstitutional Rights To Due Process And A ReliablePenalty Determination Under The Fifth, Sixth, EighthAnd Fourteenth Amendments To The United StatesConstitution And Article I, Sections 1, 7, And 15 OfThe State Constitution 91

1. Defense Counsel Did Not Waive The InstantClaim Concerning The Trial Court's Limits OnDr. Pierce's Testimony 92

2. The Trial Court Erred By Preventing TheDefense From Introducing Relevant EvidenceProffered For A Sentence Less Than Death InViolation Of Mr. Lightsey's Rights Under TheFederal And State Constitutions 96

D. The Trial Court's Rulings Limiting Dr. Pierce'sTestimony Were Prejudicial And Require TheReversal Of Mr. Lightsey's Judgment Of Death 100

IX. MR. LIGHTSEY'S SENTENCE OF DEATH MUST BEREVERSED BECAUSE THE TRIAL COURTPREJUDICALLY ERRED IN ALLOWING THE JURY TOCONSIDER AN INVALID AND UNCONSTITUTIONAL'FACTOR (B)' AGGRAVATOR DURING ITS PENALTYPHASE DELIBERATIONS 104

VB

A. Respondent's Contentions 104

B. The Trial Court Erred in Allowing Consideration ofAppellant's Nonviolent Encounter with a Jail Officer.. ...... 104

1. Mr. Lightsey's Actions Did Not Indicate aThreat of Violence 105

2. Mr. Lightsey Did Not Violate Penal CodeSection 148 107

3. The Trial Court Erred In Instructing That theConduct Was a Valid Factor (b) Aggravator 108

C. The Error Violated Mr. Lightsey's ConstitutionalRights To A Fair Trial, Due Process, And A Reliableand Proportionate Verdict 109

D. The Error Requires ReversaL 110

1. Standard of Review 110

2. The Error Was Not Harmless 110

X. THE TRIAL COURT'S DENIAL OF MR. LIGHTSEY'SREQUEST TO ADDRESS THE JURY BEFORE HISPENALTY VERDICT WAS ANNOUNCED VIOLATEDHIS CONSTITUTIONAL AND STATUTORY RIGHTS TOALLOCUTION AND REQUIRES THE REVERSAL OFHIS JUDGMENT OF DEATH 112


B. Criminal Defendants In California Now Have TheConstitutional and Statutory Rights To Make APersonal Statement In Mitigation, But Only If TheDefendant Makes The Statement Under Oath And IsSubject To Cross-Examination 112

C. By Enacting Sections 1200 And 1204 And ThereafterModifying Section 1204, The Legislature IntendedThat Evidence Offered In Aggravation And MitigationBe Made Through Testimony Under Oath And SubjectTo Cross-Examination But Did Not Intend By ThoseProvisions To Require That A Defendant's Personal

viii

Statement In Mitigation Be Subject To SuchRequirements 113

D. Prejudice 117

XI. MR. LIGHTSEY'S SENTENCE OF DEATH MUST BEREVERSED BECAUSE THE TRIAL COURTPREJUDICALLY ERRED IN FAILING TO INSTRUCTTHE JURORS TO DISREGARD THE FACT THAT HEWAS VISIBLY SHACKLED THROUGHOUT HISPENALTY PHASE PROCEEDINGS 119


B. The Shackles Were Visible to the Jury During thePenalty Phase, Requiring Instruction Pursuant toCALJIC 1.04 119


XII. THE TRIAL COURT'S FAILURE TO RULE ON TWO OFTHE GROUNDS RAISED IN MR. LIGHTSEY'S MOTIONFOR NEW TRIAL REQUIRES THAT HIS CASE BEREMANDED TO THE TRIAL COURT FOR RENEWEDHEARINGS ON THIS MOTION 122


B. The Trial Court Erred By Failing To Rule On Two OfThe Grounds Raised In Mr. Lightsey's Motion ForNew Trial. 122

1. The Trial Court Erred in Failing to Rule onAppellant's New Trial Motion AllegationsRegarding Prosecutorial Misconduct.. 122

2. The Trial Court Erred in Failing To Rule onAppellant's New Trial Motion Regarding theDenial of His Section 995 Motion 123

C. The Error Both Denied Appellant a Fair Trial andOtherwise Caused Him Prejudice 125

D. Conclusion 126

IX

XIII. THE AUTOMATIC APPEAL PROCESS IN CALIFORNIAIS TOO TAINTED BY POLITICAL CONSIDERATIONSTO ENSURE MR. LIGHTSEY'S CONSTITUTIONALRIGHTS ARE RESPECTED, REQUIRING PER SEREVERSAL OF HIS SENTENCE OF DEATH 127


B. The Po1iticization Of The Automatic Appeal ProcessIn California Requires Reversal of Mr. Lightsey'sConvictions 127

XIV. MR. LIGHTSEY'S VERDICT AND SENTENCE OFDEATH MUST BE REVERSED BECAUSE THEY WEREOBTAINED IN VIOLATION OF INTERNATIONAL LAW ..... 128


B. Mr. Lightsey's Rights Under International Law WereViolated 128

XV. THE CAPITAL SENTENCING STRUCTURE INCALIFORNIA, BOTH GENERALLY AND AS APPLIEDTO THE SPECIFICS OF MR. LIGHTSEY'S CASE,VIOLATES APPELLANT'S RIGHTS UNDER THEUNITED STATES CONSTUTION TO TRIAL BY JURY,DUE PROCESS OF LAW, FREEDOM FROM CRUELAND UNUSUAL PUNISHMENT, AND A RELIABLEVERDICT, REQUIRING REVERSAL OF HIS SENTENCEOF DEATH 129


B. California's Death Penalty Statute Violates the U.S.Constitution 129

XVI. CUMULATIVE ERROR 130


B. The Cumulative Error In Mr. Lightsey's Case RequiresThe Reversal Of The Entire Judgment Against Him .......... 130

CONCLUSION 131

x

DECLARATION OF SERVICE 132

WORD COUNT CERTIFICATION 133

xi

TABLE OF AUTHORITIES

California Cases

CR. v. Tenet Healthcare Corp. (2009) _ Cal.App.4th_ [2009 WL 19130] 114

In re Gay (1998) 19 Ca1.4th 771, 816 100

In re },/artin (1987) 44 Cal.3d 1, 29 54

In re Muhammad C. (2002) 95 Cal.App.4th 1325 107

In re Ruzicka (1991) 230 Cal.App.3d 595,601.. 60

In re Sakarias (2005) 35 Ca1.4th 140, 155-156 24

In re Shannon B. (1994) 22 Cal.App.4th 1235, 1242-1246 112, 113

Kruse v. Superior Court (2008) 162 Cal.App.4th 1364, 1368 64

Lucas, supra, 12 Ca1.4th 415, 464 58

Mathews v. Workmen's Compensation Appeals Board(1972) 6 Ca1.3d 719, 727 105

People v. Adrian (1982) 135 Cal.App.3d 335, 337 67, 69

People v. Anderson (2001) 25 Ca1.4th 543,574 .45

People v. Ashmus (1991) 54 Ca1.3d 932, 1001-1002 94

People v. Avila (2006) 38 Ca1.4th 527 fn. 22 74

People v. Babbitt (1988) 45 Ca1.3d 660 35, 38

People v. Barnett (1998) 17 Ca1.4th 1044,536 .49

People v. Bassett, supra, 69 Ca1.2d 122 6

People v. Bell (1955) 138 Cal.App.2d 7, 11-12 .47, 50

People v. Bouzas (1991) 53 Ca1.3d 467,480-81 63

People v. Bowker (1988) 203 Cal.App.3d 385,390 96,99

People v. Boyd (1985) 38 Ca1.3d 762, 772-777 105, 107

Xll

People v. Bradford (1997) 15 Ca1.4th 1229, 1336 64

People v. Brown (2003) 31 Ca1.4th 518, 553 36,50,93, 111

People v. Castro (2005) 78 Cal.AppAth 1402 11, 33,45,47

People v. Cole (2004) 33 Ca1.4th 1158, 1195, fn. 6 .41, 59, 109

People v. Cudjo (1993) 6 Ca1.4th 585, 638 54

People v. Danks, supra, 32 Ca1.4th at pp. 321-322 101, 103

People v. Drew (1978) 22 Ca1.3d 333 92

People v. Duncan (1942) 50 Cal.App.2d 184 124

People v. Dunkle (2005) 36 Ca1.4th 861 8, 10, 11, 32

People v. Duran (1976) 16 Ca1.3d 282, 291-92 71, 73-75,120,121

People v. Elliott (2005) 37 Ca1.4th 453, 483 56

People v. Evans (2006) 135 Cal.AppAth 1178, 1182-1186 112-114,116

People v. Flood (1998) 18 Ca1.4th 470, 482 fn.7 74

People v. Fosselman (1983) 33 Ca1.3d 572, 582 123, 126

People v. French (1939) 12 Ca1.2d 720 123

People v. Fudge (1994) 7 Ca1.4th 1075, 1117 103

People v. George (1994) 30 Cal.App.4th 262, 272-73 73, 120

People v. Gionis (1995) 9 Ca1.4th 1196, 1214 65

People v. Giordano (2007) 42 Ca1.4th 644, 659 114

People v. Givan (1992) 4 Cal.AppAth 1107, 1117 74, 120

People v. Glenn (1950) 96 Cal.App.2d 859 123

People v. Graham (1969) 71 Ca1.2d 303, 317-319 74

People v. Hardy (1992) 2 Ca1.4th 86, 157 64

Xlll

People v. Hart (1999) 20 Ca1.4th 546,637-638 100

People v. Harris (1993) 14 Cal.App.4th 984 9

People v. Harris (2008) 43 Ca1.4th 1269, 1311 106

People v. Hill (1967) 67 Ca1.2d 105, 115, fn. 4 19

People v. Hill (1998) 17 Ca1.4th 800, 820 94

People v. Howard (2008) 42 Cal.4th 1000, 1027-1028 109

People v. Hughes (2002) 27 Ca1.4th 287,383 105, 106

People v. Jackson, supra, 14 Cal.App.4th 1818, 1825-26 73, 120

People v. Jacla (1978) 77 Cal.App.3d 878,888 74,75, 121

People v. Johnston (1940) 37 Cal.App.2d 606 124

People v. Johnson (1980) 26 Ca1.3d 557, 576-57 6

People v. Johnson (2004) 119 Cal.App.4th 976,984 51

People v. Kraft (2000) 23 Cal.4th 978 40

People v. Lee Sare Bo (1887) 72 Cal. 623 67

People v. Lewis (2008) 43 Ca1.4th 415,527 107, 111

People v. Lucas (1995) 12 Ca1.4th 415, 464 57, 58

People v. Linder (1971) 5 Cal.3d 342 35,43,70

People v. Livaditis (1992) 2 Ca1.4th 759, 775 107

People v. Mar (2002) 28 Cal.4th 1201, 1217 73, 120

People v. Mar Gin Suie (1909) 11 Cal.App. 42 67

People v. Masterson (1994) 8 Cal.4th 965 19

People v. McDaniel (2008) 159 Cal.App. 736, 743 71, 73, 121

People v. Monterroso (2004) 34 Ca1.4th 743, 775 106

People v. Mosher (1969) 1 Ca1.3d 379,395 6

xiv

People v. Newby (2008) 167 Cal.AppAth 1341, 1346-1347 114

People v. Nicolaus (1991) 54 Ca1.3d 551.. 78,92,96

People v. Ogen (1985) 168 Cal.App.3d 611,622 114

People v. Partida (2005) 37 Ca1.4lh 428,433-439 41,51,59,94,95, 109

People v. Pensinger (1991) 52 Ca1.3d 1210, 1259 107, 108

People v. Perez (1966) 239 Cal.App.2d 1,7 .47

People v. Plane (1979) 88 Cal.App.3d 223, 244 38

People v. Pompa-Ortiz, supra, 27 Ca1.3d 519 125

People v. Quiroga (1993) 16 Cal.App.4lh 961, 966 104, 108

People v. Raley (1992) 2 Ca1.4th 870, 892 93

People v. Ramirez (2006) 39 Ca1.4lh 398 12, 13

People v. Reilly, supra, 3 Ca1.3d 421,425 6

People v. Robinson (1995) 31 Cal.App.4lh 494, 504-505 63

People v. Robinson (2007) 151 Cal.App.4th 606,615 17

People v. Rowland (1992) 4 Ca1.4th 238,265, fn. 4 93, 94

People v. Samuel (1981 29 Ca1.3d 489,495 19,21

People v. Sherrod, supra, 59 Cal.App.4lh 1168, 1175 125, 126

People v. Skinner (1985) 39 Ca1.3d 765, 768-769 92

People v. Smith (2003) 31 Ca1.4lh 1207, 1215 51

People v. Soukomlane (2008) 162 Cal.App.4lh 214, 230 73,74, 121

People v. Superior Court (Edmonds) (1971) 4 Ca1.3d 605 123, 124

People v. Thompkins (1987) 195 Cal.App.3d 244, 255 73, 120

People v. Tracy (1970) 12 Cal.App.94, 102 17

xv

People v. Traylor (1972) 23 Cal.App.3d 323, 331.. 59

People v. Tuilaepa (1992) 4 Ca1.4th 569, 589 105, 106

People v. Turner (1870) 39 Ca1.3d 370 124, 125

People v. Valladoli (1996) 13 Ca1.4th 590, 604 15

People v. Vera (1997) 15 Ca1.4th 269,276-277 .41, 52, 59, 74, 109

People v. Walker, supra, 47 Ca1.3d 605, 640 111

People v. Watson, supra, 46 Ca1.2d at p. 836 .43, 51, 52, 66, 70, 118

People v. Weaver (2001) 26 Ca1.4th 876, 903 32,98

People v. Welch (1993) 5 Ca1.4th 228, 236 52

People v. Wheeler (1992) 4 Ca1.4th 284, 294, 300, fn. 14 45,47

People v. Williams (2008) 43 Ca1.4th 584, 622, fn. 21 24

People v. (Lester) Wilson (2008) 44 Ca1.4th 758 49

People v. Yeoman (2003) 31 Ca1.4th 93,117 94

People v. Zirbes (1936) 6 Ca1.2d 425 123

Solomon v. Superior Court (1981) 122 Cal.App.3d 532,535 120

Federal Cases

Ake v. Oklahoma, supra, 470 U.S. at pp. 76, 77, 80-81 100

Brown v. Sanders (2006) 546 U.S. 212, 220 110

Bruton v. United States (1968) 391 U.S. 123, 131, fn. 5 51

California v. Brown (1987) 479 U.S. 538,543 65, 109

Chambers v. Mississippi (1973) 410 U.S. 284 35, 38, 54, 57-59

Chapman v. California, supra, 386 U.S. 18,24

........ 35,43,45,51, 52, 55, 59, 60, 63, 66, 70, 75, 103, 110, 118, 121

xvi

Chia v. Cambria (9th Cir. 2004) 360 F.3d 997, 1004 57

Comer v. Schriro (9th Cir. 2007) 480 F.3d 960, 990-992 120

Crane v. Kentucky (1986) 476 U.S. 683 35,57

Crawford v. Washington (2004) 541 U.S. 36 116

Darden v. Wainwright (1986) 477 U.S. 168, 181-182 62

Davis v. ALaska (1974) 415 U.S. 308, 317 39

Deck v. Missouri (2005) 544 U.S. 622 [125 S.Ct. 2007,2015-2016] 120

DePetris v. Kuykendall (9th Cir. 2001) 239 F.3d 1057 39,43

Duckett v. Godinez (9th Cir. 1995) 67 F.3d 734, 739 120

Duran v. City ofDougLas, Ariz. (9th Cir. 1990) 1372, 1378 104

Dusky v. United States (1960) 362 U.S. 402 7,8, 10, 11,32

Eddings v. Oklahoma (1982) 455 U.S. 104, 110 95, 100

Faretta v. CaLifornia (1975) 422 U.S. 806 96

Ford v. Wainwright, supra, 477 U.S. 413,417 101

Frantz v. Hazey (9th Cir. 2008) 533 F.3d 724, 739-740 18

Gardner v. FLorida (1977) 430 U.S. 349, 357-358 65, 109

Godinez v. Moran (1993), 509 U.S. 389 23

GonzaLes v. LytLe (1oth Cir. 1999) 167 F.3d 1318 35, 38

Green v. Georgia (1979) 442 U.S. 95 54,57,59,98,99

Herring v. New York (1975) 422 U.S. 853, 862 20

Hicks v. OkLahoma, supra, 447 U.S. 343,346 63,71, 105

Houston v. HiLL (1987) 482 U.S. 451, 461.. 104

Indiana v. Edwards (2008) 128 S.Ct. 2379 23

xvii

Lockett v. Ohio (1978) 438 U.S. 586,604 95

McKaskle v. Wiggins (1984) 465 U.S. 168, 178 17

Medina v. California (1992) 50? U.S. 437, 448 32

Michelson v. United States (1948) 335 U.S. 469, 475 63

Noble v. Kelly (2nd Cir. 2001) 246 F.3d 93, 98 67

Pate v. Robinson (1966) 383 U.S. 375 7, 8, 10, 17,32

Penson v. Ohio (1988) 488 U.S. 75, 81.. 20

Pointer v. United States (1965) 38- U.S. 400, 405 51

Rissetto v. Plumbers & Steamfitters Local 343 (9th Cir.1996) 94 F.3d 597, 600 24

Robinson v. Ignacio (9th Cir. 2004) 360 F.3d 1044,1060, fn. 10 18

Rosario v. Kuhlman (2nd Cir. 1988) 839 F.2d 918 35,43,70

Russellv. Rolfs (9th Cir. 1990) 893 F.2d 1033,1037-1039 24

Sechrest v. Ignacio (9th Cir. 2008) 549 F.3rd 789, 805 25

Strickland v. Washington, supra, 466 U.S. at p. 685 20

Skipper v. South Carolina (1986) 476 U.S. 1,4 95,99, 100, 103

Stringer v. Black (1992) 503 U.S. 222, 232 109, 110

Sullivan v. Louisiana (1993) 508 U.S. 275, 279 61

Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, 530 57

United States v. Bay (9th Cir. 1985) 762 F.2d 1314, 1315 37,38

United States v. Carabello-Cruz (1 st Cir. 1995) 52 F.3d390, 393 37,38

United States v. Chong (D.Hawaii 1999) 104F.Supp.2d 1232, 1236 117

XVlll

United States v. Fajardo, supra, 787 F.2d 1523, 1527-1528 51

United States v. Purnett (2nd Cir. 1990) 910 F.2d 51, 54 17

United States v. Valenzuela-Bernal (1982) 458 U.S. 858, 867 57

United States v. Vgeri (9th Cir. 1995) 51 F.3d 876 50

United States v. Zedner (2nd Cir. 1999) 193 F.3d 562, 567 17

Wagner v. Pro!'l Eng'rs in Cal. Gov't (9th Cir. 2004) 354F.3d 1-36, 1044 24

Wardius v. Oregon (1973) 412 U.S. 470, 475 37, 38

Washington v. Texas (1967) 388 U.S. 14, 19 .40, 54, 57

Whaley v. Belleque (9th Cir. 2008) 520 F.2d 997, 1002 24,25

Williams v.Cain (W.D.La., 1996) 942 F.Supp. 1088, 1094-1095 101, 103

Wise v. Bowersox (8th Cir. 1998) 136 F.3d 16, 17

Woodson v. North Carolina (1976) 428 U.S. 280, 305 65, 109

Other Cases

State v. Brown (Tenn. 2000) 29 S.W.3d 427,433 59

State v. Colon (2004) 272 Conn. 106, [864 A.2d 666, 842-846] 117

California Statutes

Evid. Code, § 352 35,38,46,47

Evid. Code, § 353 93, 94

Evid. Code, § 780(c) 47,50

Pen. Code, § 69 108

Pen. Code, § 148 104, 107, 108

Pen. Code, § 190.3 93, 104, 105

Pen. Code, § 245 46

XIX

Pen. Code, § 995 122, 123, 125

Pen. Code, § 1181 123, 125

Pen. Code, § 1200 112, 113, 116

Pen. Code, § 1201 113

Pen. Code, § 1204 113, 115-117

Pen. Code, § 1259 74

Pen. Code, § 1368 7,14, 15, 19,77,79,92

Pen. Code, § 1369 7,9, 15, 16

Pen. Code, § 1404 15, 16

Pen. Code, § 1469....................................................................................... 51

Other Statutes

Iraqi Criminal Procedure Code, Section 156 [Law 23 of 1971] 75

Constitutions

U.S. Const., Amend. 5 8,35,45,62,66,71,91, 105, 120, 122, 126

U.S. Canst., Amend. 6 8, 35,45,62,66,71,91,105,116,120,122,126

U.S. Canst., Amend. 8 .

..................................... 8,35,45,62,66, 71, 91, 95, 100, 105, 120, 122, 126

U.S. Canst., Amend. 14 ..

..................................... 8, 35, 45, 62, 66, 71, 91, 95, 100, 105, 120, 122, 126

Cal. Canst., art. I, § 1 91

Cal. Const., art. I, § 7 8, 35,45,62,66,71,91,105,120,122,126

Cal. Canst., art. I, § 15 8, 35,45,62,66,71,91,105,120,122,126

Cal. Const., art. I, § 16 74

Cal. Const., art. I, § 17 8, 35,45,62,66,71,105,120,122,126

xx

Cal. Const., art. I, § 28 8, 35, 45, 62, 66, 71,105,120,122,126

Other Authorities

ABA Standards (1968) Trial by lury, § 4.l(c) l20

Black's Law Dictionary, 72 (ih ed. 1999) 67

Brace & Boyea "State Public Opinion, the Death Penaltyand the Practice ofElecting Judges" (2009)American Journal ofPolitical Sciences,Vol. 52, No.2, pp. 360-371 127

CALlIC 1.04 71, 73,119,120

CALlIC 2.20 48

CALlIC 2.21 48

CALlIC 4.50 67,68

CALlIC No. 8.85(d) 77,92

Flexible System Criteria in Chronic Schizophrenia (1986) 27Comprehensive Psychiatry 259, 259-265 10

Insight into Schizophrenia: Anosognosia, Competency, andCivil Liberties (2000) 11 Geo. Mason U. Civ. Rts. L.J.25, 25 10, 20

Rep. of the Internal Pilot Study ofSchizophrenia (1973)World Health Org 10

XXI

IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

PEOPLE OF THE STATE OF CALIFORNIA

Plaintiff and Respondent,

v.

CHRISTOPHER CHARLES LIGHTSEY

Defendant and Appellant

Supreme CourtNo. S048440

[Capital Case]

Kern CountySuperior CourtNo. 56801

REPLY TO RESPONDENT'S STATEMENT OF FACTS

Rather than summarizing the facts of the case as presented at trial,

respondent presents a one-sided and biased recitation of the prosecution's

evidence, while ignoring the defense evidence. (RB 8-54.) Consistent with this

approach, respondent summarizes the prosecution guilt phase evidence in a section

entitled "Statement of Facts," while totally ignoring facts developed during

defense cross-examination of these prosecution witnesses. (RB 55-33.)

Respondent then relegates the defense case-in-chief to a separate section entitled

"defense" (RB 34-42), deceptively and subtlety arguing in this manner that only

the prosecution presented actual "facts."

1

i. incomplete or Omitted impeachment ofProsecution Witnesses

Respondent's "Statement of Facts" continually highlights the prosecution

theory of the case alone, without making proper reference to the extensive and

damning impeachment of much of the prosecution's case. While respondent's

"Statement of Facts" is replete with such examples of inaccurate or incomplete

summaries of prosecution witness testimony, the following three examples of such

behavior are especially relevant and telling:

a. Coroner

Respondent summarizes the testimony of Dr. Walters, the coroner in this

case, to claim that he only testified that the victim was probably killed at "11 :00

a.m." (RB 18.) Yet respondent completely fails to note the fact the coroner was

impeached with the fact that he originally told Det. Boggs that the decedent died

much earlier in the morning, while Mr. Lightsey was still in court, making it

impossible for him to be the killer. (19 RT 4262-4264; see also Arg. 2.)

Respondent also fails to note that Dr. Walters conceded that he had given the same

pro-defense testimony under oath at Mr. Lightsey's preliminary examination as

well. (19 RT 4262-4264.)

b. Daulong

Respondent's summary of court reporter Diane Daulong' s testimony about

Mr. Lightsey's alleged change of clothing during the morning hearing (RB 13)

fails to mention that she said nothing about this until six weeks before trial,

although she had been interviewed by an investigator early in the case.

Respondent also buries Mr. Lorenz's clear and unimpeached recollection of Mr.

Lightsey's clothing -- dark slacks and a light-colored dress shirt -- and the

presence of the Volvo in which Mr. Lightsey and his mother had driven to his

attorney's office in its parking place during the mid-morning, in the "defense"

section of their summary. Nor does respondent even mention that the trial

prosecutor Lisa Green essentially repudiated Daulong's testimony in her closing

2

argument and asserted that the prosecution's theory was that Lightsey killed

Compton after court, not between appearances.

c. Rowland

Respondent also summarizes the testimony of jailhouse informant Robert

Rowland (RB 31-32), but fails to note extensive defense impeachment evidence

that Rowland was a 'career snitch' who had suspiciously managed to get

confessions from numerous unrelated defendants. (24 RT 5179-5202.)

Respondent also fails to summarize the fact that Rowland had been impeached

with his many horrific violent felonies, both within and without of prison, and his

status as a former member of the Aryan Brotherhood prison gang. (24 RT 5176

5178.)

Most importantly, respondent fails to note the fact that Rowland was

impeached with the fact that he was the 'trustee tier-tender' for Mr. Lightsey's

cell, with unimpeded access to Mr. Lightsey's legal papers, providing him a

source of his information separate from any conversations with Mr. Lightsey. (24

RT 5205,5211.)1

2. Defense Alibi Evidence

Beyond ignoring defense facts elicited during defense cross-examination of

prosecution witnesses during the guilt phase, respondent goes on to summarize the

"defense" evidence as if it consisted of nothing but Rita Lightsey's testimony and

the extensive prosecution impeachment of her testimony. (RB 34-39) The rest of

the defense case-in-chief is relegated to a few cursory pages of grossly incomplete

summaries of the remaining witnesses. (RB 40-43.) Yet Rita Lightsey's

testimony was only a small part of the defense case-in-chief which took up over

500 pages of reporter's transcript. (25 RT 5343-28 RT 5899.)

1 Nor does respondent note the fact that Rowland was considered so unreliable bythe trial prosecutor that they did not even use him at the preliminary examination,apparently desperately turning to his testimony at trial only when the prosecutionfeared that Mr. Lightsey might otherwise be acquitted by the jury.

3

Instead, the defense's case focused on presenting the testimony of

numerous neutral, unbiased witnesses who provided compelling evidence that Mr.

Lightsey was in court during the morning when the homicide occurred, and left the

courtroom at a time which would make it physically impossible for Mr. Lightsey

to have been the killer. (See also Arg. 2.) During the defense's case, Mr. Robin

Lorenz, another client of Dominic Eyherabide's, who had no ties to Mr. Lightsey,

testified that he walked with Mr. Eyherabide, Mr. Lightsey and Rita Lightsey from

Eyherabide's office to the courthouse on the morning of July 7, 1993; that his

court hearing was completed around 9:30 a.m.; and that when he walked back to

Eyherabide's office, he saw Mr. Lightsey's mother's Volvo still parked in the

same spot where it had been when they left for court. (25 RT 5355-5357-5362.)

Mr. Lightsey's defense attorney during this hearing that morning, a well

respected local attorney, stated that he was in two hearings that morning, Mr.

Lightsey's case and the capital murder matter of People v. Emdy. (25 RT 5392

5395; Exh. H.) The Emdy trial was in Department 4 of the superior court, and

Mr. Lightsey's bail bond hearing was set in Department 10 of the same

courthouse. Mr. Lightsey's hearing in Department 10 was called for the first time

soon after 9:00. Because Mr. Eyherabide was in trial, the hearing was put over

until later in the morning, on the understanding that Eyherabide would return to

Department 10 during the midmorning recess in Emdy. (25 RT 5409-5411.)

Eyherabide returned to Department 10 during a recess in the Emdy trial, and Mr.

Lightsey's case was called for the second time. Mr. Eyherabide's notes for July 7

show that the Emdy trial recessed at 10:30, which would have placed the time of

the second calling of Mr. Lightsey's case shortly after 10:30. (25 RT 5398,

5401.)2 (While Mr. Lightsey was not in the courtroom then, the bailiff found him

2 This time was confirmed by the preliminary hearing of the opposing party at thehearing, bail bondsman Brian Epps. (PX 29.) However, at Mr. Lightsey's trial,Epps changed his testimony and stated that he thought the second calling of thecase had occurred between 10: 15 and 10:30.

4

and his mother in the coffee shop, and Mr. Lightsey was present when the case

was called for the third time.)

Mr. Eyherabide's notes for July 7 showed that he returned to the Emdy trial

down the hall in Department 4 immediately after Mr. Lightsey's case was heard,

and arrived there at 10:55 a.m. (25 RT 5401-5403.) Given other undisputed

evidence showed that the victim in the case was killed at around 10:55 a.m. or

earlier, this testimony completely cleared Mr. Lightsey of the murder. (See Arg.

2.) Yet this evidence is only briefly discussed in respondent's statement of facts,

instead relegated to a few sentences in a separate "defense" section.

Supporting testimony was also provided by another attorney working in the

courthouse that day Fred McAtee, who saw Mr. Lightsey in the courthouse coffee

shop in the mid-morning. (25 RT 5431.) Deputy Michael Forse, the bailiff in

Dept. 10, also testified that he saw Mr. Lightsey in court on the morning of July 7,

and recalled going to the coffee shop to get Mr. Lightsey. (25 RT 5448-5455.)

John Somers, the prosecutor in this hearing, testified that he believed Mr.

Lightsey's case was probably called for the first time at around 9:05 a.m. (25 RT

5465.) Somers confirmed that Eyherabide had been in Department 10 earlier but

had told Somers he needed to leave for Department 4, and when the case called for

the first time that day, the court told Somers to come back at 10:30 a.m., when

Eyherabide would be available. (25 RT 5467-5469.)

Somers went on to concede that he had testified at the preliminary hearing

that Eyherabide came to Department 10 at around 10:45 a.m. for the second

calling of the case, which would have cleared Mr. Lightsey of the murder as this

was too late to give Mr. Lightsey to be retrieved from the coffee shop by Deputy

Forse, have his hearing, and still leave with time to kill the decedent. 3 (25 RT

5470-5473; see also Arg. 2.)

Unlike Rita Lightsey's extensively summarized testimony, which was only

3 At trial, Somers changed his testimony and said he believed the case was calledshortly after 10:30 a.m. (25 RT 5479-5481; see also Arg. 12.)

5

peripheral to the defense's case and barely mentioned in defense closing

arguments, this defense evidence completely exonerated Mr. Lightsey of the

homicide. Yet is barely mentioned in respondent's brief, and even where

mentioned only summarized incompletely.

3. Respondent's Statement ofFacts Violated Appellate Principles

Respondent's one-sided approach is wholly unacceptable and in violation

of appellate procedures of review. As People v. Johnson (1980) 26 Ca1.3d 557,

576-577 makes plain in the context of examining substantial evidence:

"In determining whether a reasonable trier of fact couldhave found defendant guilty beyond a reasonable doubt, theappellate court 'must view the evidence in a light mostfavorable to respondent and presume in support of thejudgment the existence of every fact the trier couldreasonably deduce from the evidence.' (People v. Mosher(1969) 1 Ca1.3d 379, 395; People v. Reilly, supra, 3 Cal.3d421,425.) The court does not, however, limit its review tothe evidence favorable to the respondent. As People v.Bassett, supra, 69 Cal.2d 122, explained, 'our task ... istwofold. First, we must resolve the issue in the light of thewhole record - i.e., the entire picture of the defendant putbefore the jury - and may not limit our appraisal to isolatedbits of evidence selected by the respondent. Second, we mustjudge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simplyto point to 'some' evidence supporting the finding, for 'Notevery surface conflict of evidence remains substantial in thelight of other facts.' (69 Cal.2d at p. 138.) (Fn. omitted.)"(ld. at pp. 576-677, emphasis added.)

However, respondent's recitation of the facts on appeal does not follow

these principles. Rather than being a true "Statement of Facts," it was instead

merely a one-sided presentation of the prosecution's theory of the case, which says

more about the deficiencies of respondent's brief than any supposed merits of their

case on appeal.

II

6

ARGUMENT

I.

MR. LIGHTSEY'S CONVICTIONS AND SENTENCE OF DEATH MUSTBE REVERSED BECAUSE HE WAS INCOMPETENT TO STAND TRIAL,

AND BECAUSE THE COMPETENCY PROCEEDINGS IN HIS CASEWERE FATALLY TAINTED BY PROCEDURAL ERRORS.

A. Respondent's Contentions

"THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN

FINDING APPELLANT MENTALLY COMPETENT TO STAND TRIAL."

B. The Trial Court Repeatedly Violated Statutory and ConstitutionalRules Governing Competency Proceedings

As appellant pointed out in his opening brief (AOB 63-118), on six

different occasions the various attorneys representing or advising Mr. Lightsey

asked the trial court to declare a doubt of his mental competence, citing examples

of his delusional thinking and his inability to cooperate with his defense attorneys

and investigators. While proceedings were suspended twice for examinations by

court-appointed experts, no proper competency hearing was ever held. At trial,

the trial court repeatedly refused to accept the obvious fact that Mr. Lightsey was

mentally incompetent, ignoring repeated incidents in which he interrupted the

proceedings with delusional and tangential arguments, unconsciously impeded his

counsel's attempts to defend him, and failed to maintain control of his disruptive

behavior or comprehend its unsettling effect on the jury.

Individually and cumulatively, the court's errors and its failure to protect

Mr. Lightsey from the consequences of his mental illness violated Mr. Lightsey's

right not be tried while mentally incompetent. (Dusky v. United States (1960) 362

U.S. 402; Pate v. Robinson (1966) 383 U.S. 375, 386-387; Pen. Code, §§ 1368,

1369.)

These errors violated Mr. Lightsey's state and federal constitutional rights

to a fair trial, to due process of law, and to a proportionate and reliable verdict of

7

death. (U.S. Const., Amends. 5, 6, 8, and 14; Cal. Const., art. 1, §§ 7, 15, 17 and

28.) The errors require per se reversal of Mr. Lightsey's verdict and judgment of

death. (Dusky v. United States, supra, 362 U.S. 402; Pate v. Robinson, supra, 383

U.S. 375, 386-387; People v. Dunkle (2005) 36 Cal.4th 861, 885.)

C. The Court Erred in the Competency Proceedings of March, 1994 byAppointing Only One Expert and By Finding Mr. Lightsey CompetentCn.ln.I"T 1'Il._ ...... n. D .... C"~C" n.~ n. D,.. ...... __ _~ ,.., ........ V ..r ...... ro_... V ..TI'Io_ ,....... ............. _ ..............

uU.".J uu ..u" .ua"." U " ......"l'u U.... ua.. .l.:JAl'~.", .I.:J. ~u ... uuuhu "'1~

Expert Had Not Conducted an Examination of Mr. Lightsey.

The first competency proceeding in Mr. Lightsey's case was

jurisdictionally deficient in that the trial court appointed only one expert to

evaluate Mr. Lightsey, even though he denied that he was incompetent and

objected to the competency proceeding, and then based its finding on a report

issued by a psychologist who never actually examined Mr. Lightsey. (AOB 66

72.)

1. The Trial Court Erred in Only Appointing One Expert

Respondent concedes that when a defendant denies that he is incompetent,

two examiners must be appointed. (RB 57-63.)4 However, respondent argues that

Mr. Lightsey never advised the court that he was contesting the claim that he was

competent. Yet as respondent acknowledges, and even marks in bold in its brief,

Mr. Lightsey made as clear an objection as could be expected from any lay person,

particularly one whose mental competence was in doubt. In response to the

court's declaration of a doubt of his competence and order for an examination, he

4While respondent accuses Mr. Lightsey of selectively citing passages in therecord to overemphasize his irrationality, respondent begins its brief by selectivelyciting from the record a deceptively lucid passage from Mr. Lightsey's preliminaryhearing, in support of its argument that Mr. Lightsey was competent. (RB 57,citing RT [1124/94] 6.) Respondent fails to quote later portions of the samehearing, where Mr. Lightsey spoke in a pressured manner~ rambled in long run-onsentences, and made odd comments about the "conspiracy" against him and the"think tank" he was running from his cell. (See, e.g. RT [1124/94] 15.) As therecord shows, moreover, Mr. Lightsey's mental condition continued to deterioratethrough subsequent proceedings and his trial.

8

told the court to "Cancel the doctor's appointment. I don't need a doctor [i.e.

due to the fact that he was not incompetent]. I refuse!" (RB 58, emphasis in

original, citing 3 RT 791-792.)

Later in its brief, in fact, respondent expressly concedes that "as appellant

wished, he was found competent to stand trial." (RB 62, emphasis added.) As

noted in the opening brief, (AOB 69-70), all parties, including the judge at the

hearing, were very well aware that Mr. Lightsey was claiming he was competent

and objecting to the suspension of proceedings. The court erred in only

appointing one expert examiner. (Pen. Code, § 1369.)

Perhaps recognizing the weakness of its initial tack, respondent goes on to

argue that any error was harmless because the rule requiring appointment of a

second expert was actually meant to protect only against false findings of

incompetence (RB 62, citing People v. Harris (1993) 14 Cal.App.4th 984, 996.)

In Harris, the defendant was found incompetent after an evaluation by a

single expert. The Court of Appeal discussed the question whether appointment of

a second expert is required when the defendant, but not his counsel, claims he is

competent, but did not resolve the question because the expiration of the

defendant's commitment made it moot. (14 Cal.App. 4th at pp. 995-996.) The

language relied upon by respondent is dicta, unnecessary to the decision in the

case. Moreover, the Court's statement that "the appointment of two experts ...

provides a minimum protection for the defendant against being incorrectly found

incompetent to stand trial" was specific to the factual situation presented to it, i.e.,

that of a defendant who argued on appeal that he had been erroneously found

incompetent based on a single expert's evaluation. In context, it was clearly not

intended, as respondent claims, to stand for the general principle that the statute

requires appointment of experts only to ensure against incorrect findings of

incompetence.

An evaluation by two experts protects against erroneous findings of

competence, as well as incompetence and provides a higher degree of assurance

9

on the vital question whether a defendant has "sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding" and has "a

rational as well as factual understanding of the proceedings against him." (Dusky

v. United States, supra, 362 U.S. 402,402-403; see also Pate v. Robinson, supra,

383 U.S. 375, 378 [same]; People v. Dunkle, supra, 36 Ca1.4th 861, 885 [same].)

It is well recognized in mental health literature that defendants suffering

from major mental illness often suffer from "anosognosia," a condition which

causes them to have "both a lack of awareness of having a mental disorder (and

specific signs of the disorder), and a compulsion to disprove, even at the cost of

one's personal safety, any evidence to the contrary." (Insight into Schizophrenia:

Anosognosia, Competency, and Civil Liberties (2000) 11 Geo. Mason U. Civ. Rts.

LJ. 25,25; see also Rep. of the Internal Pilot Study ofSchizophrenia (1973)

World Health Org.[noting 81 % of schizophrenics deny their illness]; Flexible

System Criteria in Chronic Schizophrenia (1986) 27 Comprehensive Psychiatry

259, 259-265[noting 89% of schizophrenics deny their illness].)

California's requirement of appointment of two experts when the defendant

objects to competency proceedings is a valuable safeguard to the integrity and

reliability of competency determinations (Dusky v. United States, supra, 362 U.S.

402,402-403; Pate v. Robinson, supra, 383 U.S. 375,378; People v. Dunkle,

supra, 36 Ca1.4th 861, 885 [same]) in the all-too-common situation in which a

mentally ill defendant cannot recognize his own illness and insists that he is

mentally competent. At a contested hearing, where the burden is on the defense to

prove the defendant's incompetence, the testimony of one expert opining that the

defendant is incompetent might not meet the burden of showing incompetence

against the defendant's insistence to the contrary; however, the agreement of two

experts would provide a much stronger case against the defendant's contrary

position.

As a final, third fallback position, respondent argues that because Mr.

Lightsey refused to see Dr. Burdick, appointing a second evaluator would have

10

been "a futile act," and therefore any error was harmless. (RB 82.) Yet this is

pure speculation. Moreover, the record is plain that when a second and third

expert were later appointed, Mr. Lightsey consented to be examined by them. (2

Supp. Conf. CT 388.) Respondent also fails to cite a single case or authority that a

mentally incompetent defendant's intentional efforts to sabotage competency

proceedings by refusing to be examined somehow trumps constitutional and state

law principles that only competent defendants may be tried. Rather, there is a

fundamental interest in our judicial system in not subjecting a mentally

incompetent defendant to trial and conviction. (Dusky v. United States, supra, 362

U.S. 402, 403-404; People v. Dunkle, supra, 36 Ca1.4th 861, 885; People v. Castro

(2005) 78 Cal.App.4th 1402, 1414.)

Finally, respondent also comes to the novel conclusion that because

Lightsey got what he wanted out of the process, i.e., a finding that he was

competent, there was no prejudice. (RB 62-63.) Respondent also argues that Mr.

Lightsey invited the error by not objecting to the judge's finding that he was

competent. Again, however, there is a fundamental interest in our judicial system

in not subjecting a mentally incompetent defendant to trial and conviction. The

fact that an incompetent defendant claims he is competent does not and cannot

trump the requirements of state and federal law, because "whether a person is

competent to stand trial is a jurisdictional question, and cannot be waived by the

defendant ..." (Castro, supra, 78 Cal.App.4th 1402, 1414.)

2. The Trial Court Abused its Discretion in Finding Mr.Lightsey Competent on the Basis of the Report of an ExpertWho Did Not Conduct a Competency Evaluation.

Respondent next argues that the competency finding was supported by

"substantial evidence," and must be upheld on appeal, because Dr. Burdick's

report provided evidence of competence and was not controverted by any evidence

from the defense. (RB 63-66.) This argument misses the point. When relevant

evidence (here, the results of a second expert's evaluation) has been erroneously

11

excluded, the reviewing court cannot properly uphold the trial court's finding on

the basis that the evidence admitted was sufficient to support it, unless the record

shows that the excluded evidence would have supported the finding. Without

knowing what the opinion of a second expert would have been, it does not matter

whether Dr. Burdick's opinion was sufficient. (Moreover, as will be discussed

infra, the record shows that when a second court-appointed examiner, Dr. Velosa,

was finally appointed, he made a finding that Mr. Lightsey was incompetent to

stand trial.)

More importantly, the supposedly "substantial evidence" of Dr. Burdick

was hardly substantial in relevance terms, given that he never actually examined

Mr. Lightsey, because Mr. Lightsey refused to be examined. Indeed, Dr. Burdick,

on whom respondent places so much reliance, conceded that "it [was] not possible

from this brief encounter to complete a formal psychiatric evaluation." (See AOB

67-70.)

The court erred in basing its decision finding Mr. Lightsey competent on

only one examiner and on such insubstantial evidence.

D. Judge Kelly Erroneously Refused to Declare a Doubt of Mr. Lightsey'sCompetence When Confronted with Judge Felice's Error inAppointing Only One Examiner and With Additional Evidence of Mr.Lightsey's Incompetence.

As previously demonstrated, Judge Kelly, the trial judge who replaced the

lower court magistrate who conducted the first flawed competency proceedings,

erred in denying trial counsel's motion, on April 8, 1994, for renewed competency

proceedings due to the errors in the previous hearing. (AOB 72-75) Respondent

makes only a cursory response to this argument, providing a procedural summary

and some general case law, but failing to address the argument on its merits. (RB

66-69.) In particular, respondent fails to respond to, or contest, Mr. Lightsey's

primary argument that this was not a case of a second competency hearing request,

where there is a need to show a "substantial change of circumstance." (See, e.g.,

People v. Ramirez (2006) 39 Cal.4th 398.) Rather, both at trial and on appeal, the

12

argument is that there was no true initial competency hearing held at all, but that

the request to Judge Kelly was actually one for a first properly constituted and

conducted competency hearing.

Moreover, assuming for the sake of argument that respondent's position is

correct, there was a "substantial change of circumstance" in the form of Mr.

Lightsey's delusional and bizarre behavior before Judge Kelly, which is amply

apparent in the record. Mr. Lightsey personally advised Judge Kelly about a

supposed dark conspiracy operating against him, including all three of his previous

defense attorneys, and argued that the conspiracy had "contaminated" the case.

(4/7/94 RT [Marsden] 12-22.) Mr. Lightsey also made strange allegations that

court transcripts had been forged and portions deleted, that his attorneys were

working for the district attorney, and that he was being "tortured" by the system.

He accused his then attorney Ed Brown of lying under oath and working with

Judge Felice to sabotage his case, along with defense investigator Purcell, and told

Judge Kelly that they were "torturing" him. (4/7/94 RT [Kelly] 3-4, 615-28;

4/7/94 RT [Kelly] 50-51.) He accused his previous attorney, Stan Simrin, of

holding secret meetings with the prosecution in order to sabotage his case (4/8/94

RT [Kelly] 57), and made allegations that corrupt court staff had forged the

preliminary hearing transcript in his case. (4/7/94 RT [Kelly] 27-28,41-42; 4/7/94

RT [Kelly] 55.) Mingled with these strange allegations, Mr. Lightsey proffered

oddly irrelevant facts, such as his swimming skills. (4/7/94 RT [Kelly] 5.)

Even if one accepts respondent's position that a showing was required of a

"substantial change in circumstances," requiring a competency hearing, the record

of the hearing before Judge Kelly provides ample evidence of such a change,

especially when viewed together with the fatally flawed errors in the original

competency 'proceedings.' (Ramirez, supra, 39 Ca1.4th 398.) The trial court erred

in failing to initiate a proper competency hearing at this stage as well.

E. The Second Set of Competency Proceedings, Held In July of 1994, WasJurisdictionally Defective, and the Finding of Competence

13

Constitutionally Deficient, Because the Trial Court Permitted Mr.Lightsey to Represent Himself After Declaring a Doubt of Mr.Lightsey's Competence Both to Assist Counsel and To RepresentHimself; Because the Court Mistakenly Believed that Both ExpertsWho Examined Mr. Lightsey Had Found Him Competent to StandTrial; and Because the Court Permitted Mr. Lightsey to Waive HisRight to a Hearing on His Competence in Return for a Finding ThatHe Was Competent.

In July of 1994, Judge Kelly was finally persuaded to declare a doubt of

Mr. Lightsey's competence, at the behest of Mr. Lightsey's advisory counsel at the

time, Ralph McKnight. However, the judge erroneously permitted Mr. Lightsey,

who vehemently denied any mental illness, to represent himself during those

proceedings and a subsequent hearing to determine whether he was competent to

represent himself and to bargain away his right to a competency hearing in return

for a judicial finding that he was competent. (See AGB 75-92.)

1. The Court Erred in Allowing Mr. Lightsey to Represent HimselfDuring Competency Proceedings and to Waive His Right to JuryTrial While Unrepresented By Counsel

Respondent first argues that the last sentence of Penal Code section 1368,

which she concedes requires the court to appoint counsel in a competency

proceeding if the defendant does not already have counsel, means only that the

court is required to appoint counsel for the limited purpose of giving the court an

opinion on whether the defendant is incompetent, and not for the purpose of

actually representing the defendant during the competency proceedings. (RB 75.)

This is incorrect on several levels.

First, to argue that the court should appoint an attorney who has no prior

relationship with the defendant for the sole purpose of giving an opinion on the

defendant's competence is absurd. How would an attorney with no prior contacts

with the defendant have an informed opinion one way or the other? Second,

appointment of counsel to give the judge an opinion about the defendant's

competence is unnecessary: the judge can declare a doubt regardless of whether

the defendant's attorney agrees. Respondent's proposed interpretation of the

14

statute fails on both counts.

This Court has repeatedly held that statutes may not be interpreted in a way

that leads to such "absurd results." (See, e.g., People v. Valladoli (1996) 13

Cal.4th 590, 604.) Reading the statute to require appointment of counsel to

represent the defendant in competency proceedings is the only interpretation of

Penal Code section 1368 that comports with rationality, practicality, and the

policies favoring the integrity of criminal proceedings.

Finally, even under respondent's reading of the statute, Judge Kelly erred,

because he did not appoint counsel even for the limited purpose of rendering an

opinion as to Mr. Lightsey's competency. Mr. Lightsey was not represented by

counsel, but was instead in pro per, throughout the proceedings.

Recognizing the weakness in this approach, respondent alternatively argues

that Penal Code section 1404 somehow allowed the judge to ignore the statutory

requirements of sections 1368 and 1369 and craft his own proceeding for

determining competence.

Section 1404 states:

"Neither a departure from the form or modeprescribed by this Code in respect to any pleading orproceeding, nor an error or mistake therein, renders itinvalid, unless it has actually prejudiced thedefendant, or tended to his prejudice, in respect to asubstantial right."

Respondent argues that in enacting this statute, "the Legislature has made

plain that a defendant has no substantial right to adherence to such standard

procedures." What respondent contends, in essence, is that section 1404 removes

from defendants any right to have statutorily required procedures followed in their

cases and permits judges to ignore procedural requirements set by the Legislature

and fashion their own processes at will. (RB 76.) Put another way, respondent

argues that section 1404 makes the entire set of procedural rules contained in the

Penal Code optional. Hardly.

15

Section 1404 was part of the original 1872 Code. Cases interpreting that

statute make it clear that this section was designed to codify the requirement that

a party claiming error in a pleading or proceeding must show prejudice, replacing

the old per se reversal requirements under the rigid 'code pleading' rules of our

country's antebellum legal system. By its very words this section deals with the

requirement of prejudice resulting from errors; it does not give a trial court carte

blanche to ignore our State's procedural statutes and craft any procedures it

chooses, as respondent argues. Mr. Lightsey did have a right to have the

procedures laid out in Penal Code section 1369 followed. Nothing in section 1404

changes this. Moreover, as previously demonstrated (AOB 75-88), Judge Kelly's

erroneous failure to appoint counsel for the competency proceedings did prejudice

Mr. Lightsey, by depriving him of a reliable determination of his competence to

stand trial and denying him his due process right not to be tried while incompetent.

Respondent next argues that, notwithstanding the clear statutory

requirement and the federal case law cited by Mr. Lightsey supporting this

requirement, courts do not need to appoint counsel for pro per defendants for a

second competency hearing after a defendant has been found competent at a prior

hearing. (RB 78-79, citing Wise v. Bowersox (8th Cir. 1998) 136 F.3d. 1197,

1203.) Wise does not stand for this proposition.

In Wise, under Missouri state law procedures which give advisory counsel

rights equivalent to appointed counsel in competency proceedings, the defendant

was represented at a second competency hearing by advisory counsel who was

authorized to cross-"examine both of the experts who testified" and to make

arguments to the court that the defendant was incompetent. (Id. at p. 1203.)

Under these Missouri state law procedures, the Sixth Circuit found that the

defendant was "well represented" in full by his advisory counsel, who was

effectively serving as appointed counsel for all practical purposes. (Ibid.)

Unlike Missouri, however, California law requires the actual appointment

of counsel during a competency hearing, even a second competency hearing.

16

(People v. Robinson (2007) 151 Cal.AppAth 606, 615 [reversing conviction due to

failure to appoint counsel during second competency hearing].) In Robinson, the

appellate court noted that both California and federal law were very plain that

counsel must be appointed whenever a competency hearing is held in a California

court, including a second competency hearing. (Id. at pp. 106-108, citing Pate v.

Robinson, supra, 383 U.S. 375, 384; People v. Tracy (1970) 12 Cal.App.94, 102

[counsel must be appointed during sanity proceedings]; United States v. Purnett

(2nd Cir. 1990) 910 F.2d 51, 54 [counsel must be appointed in competency

proceedings]; United States v. Zedner (2nd Cir. 1999) 193 F.3d 562, 567 [same].)

The Robinson court also expressly rejected the applicability of Wise v.

Bowersox, and its discussion of Missouri law, to proceedings in California courts.

As Robinson pointed out, in the second competency hearing, in Wise, "standby

counsel, who believed defendant was incompetent, was allowed to speak and to

examine the experts who testified. Both points of view on competency were well

represented and there was 'a fair inquiry' into defendant's competency."

(Robinson, supra, 151 Cal.AppAth 606,615, citing Wise v. Bowersox, supra, 136

F.3d 1197, 1203.) Such aggressive advocacy by advisory or standby counsel is

not allowed under California law, however, and certainly never occurred in Mr.

Lightsey's case, so there was no such "fair inquiry." (Ibid.)

Nevertheless, attempting to graft Missouri's unique advisory counsel

competency hearing procedures to California law, respondent argues that Mr.

Lightsey cannot show prejudice because Lightsey had advisory counsel, and this

was de facto the same as having appointed counsel under California jurisprudence.

(RB 79.) Yet as Robinson makes plain, this is erroneous. Under both California

and federal law, there is a clear difference between the roles and powers of

counsel of record and advisory counsel. The U.S. Supreme Court has made plain

that mere advisory counsel can neither "make or substantially interfere with any

significant tactical decisions ... or to speak instead of the defendant on any matter

of importance." (McKaskle v. Wiggins (1984) 465 U.S. 168, 178; see also Frantz

17

v. Hazey (9th Cir. 2008) 533 F.3d 724, 739-740 [reversing conviction where

advisory counsel allowed to act as if appointed counsel]; Robinson v. Ignacio (9th

Cir. 2004) 360 F.3d 1044, 1060, fn. 10 [noting "a standby counsel is not the

equivalent of [appointed] counsel].) Under this line of case law, it is plain that

advisory counsel McKnight could not overrule any of Mr. Lightsey's decisions,

such as his personal choice of second expert, waiver of jury trial, and waiver of the

competency hearing altogether. The record is also plain that Mr. Lightsey refused

to follow any advice giving to him by advisory counsel McKnight. As McKnight

later explained to the court, when he moved to withdraw shortly after this flawed

competency proceeding:

"Mr. Lightsey has gotten to the point wherecommunications with me have broken down torecriminations, accusations and basically nothing, nothingthat relates to moving forward on his case. I'm notcertain, because of my perception of his mental conditionthat anybody is going to get a whole lot more cooperationunless they're willing to be a door mat for him.

"[A]lmost without exception when I seek to advise himon a legal matter, instead of a discussion concerning thatlegal issue or apparent comprehension of my advice, I getargument, I'm advised I'm lying to him, that my advice isnot only not good but an attempt to sabotage his defense.

"My explanations to him of the scope and limits of myauthority and purpose in the case have gone unheeded,and he simply -- if we get five minutes of productive timetogether in our meetings it's more than average becauseour communications are not as adviser to client. It's asituation of being complained to and complained of andreferred to in most uncomplimentary terms as being somesort of surrogate for the prosecution."

I don't believe any attorney who challenges Mr.Lightsey's preconceptions of the law or ideas of how thecase should be run is going to have any better result thanI have had." (RT 7/28/94 122-124.)

18

Given this refusal by Mr. Lightsey to work with advisory counsel,

McKnight could hardly be viewed as the same thing as a counsel of record,

specifically authorized to ignore his client's instructions during competency

proceedings.

Under California law appointed counsel in competency proceedings can

make fundamental tactical decisions that, in criminal proceedings, would be

reserved to the client. (See, e.g., People v. Hill (1967) 67 Cal.2d 105, 115, fn. 4

["When evidence indicates that the defendant may be insane it should be assumed

that he is unable to act in his own best interests. In such circumstances counsel

must be free to act even contrary to the express desires of his client"]; People v.

Samuels (1981 29 Cal.3d 489, 495 ["[I]f counsel represents a defendant as to

whose competence the judge has declared a doubt sufficient to require a section

1368 hearing, he should not be compelled to entrust key decisions about

fundamental matters to his client's apparently defective judgment."]; People v.

Masterson (1994) 8 Cal.4th 965 [counsel in a competency proceeding could waive

a twelve-person jury over his client's objection.].) McKnight could not do any of

those things at Mr. Lightsey's hearing.

And, as the record shows, Lightsey not only disagreed with McKnight's

opinion on his competence, he overruled McKnight's attempt to get a competency

determination and waived a hearing on the issue in order to be found competent

and "get on with the show." Having succeeded at that, he immediately fired

McKnight and proceeded without advisory counsel.

Finally, respondent argues that Judge Kelly actually held a hearing and

made a determination of competence based on the reports of the experts and his

observations of Lightsey. (RB 81.) Yet respondent does not point to anything

substantive in the record to support this assertion. Simply put, there was no true

adversarial proceeding on Mr. Lightsey's competence because both he and the

prosecutor wanted him to be found competent. Mr. Lightsey's anosognosia, itself

an outgrowth of his mental illness, prevented him from recognizing his mental

19

impairments. (Insight into Schizophrenia: Anosognosia, Competency, and Civil

Liberties, supra, 11 Geo. Mason U. Civ. Rts. LJ. 25.) Without appointed counsel,

there was no one to advocate for the position that Mr. Lightsey was incompetent.

There was therefore no true inquiry into the state of Mr. Lightsey's competency.

The very essence of our adversarial system of criminal justice demands

partisan advocacy to ensure just results. (Penson v. Ohio (1988) 488 U.S. 75, 81;

Strickland v. Washington, supra, 466 U.S. at p. 685 ["The Sixth Amendment

recognizes the right to the assistance of counsel because it envisions counsel's

playing a role that is critical to the ability of the adversarial system to produce just

results."]; Herring v. New York (1975) 422 U.S. 853, 862 ["The very premise of

our adversary system ... is that partisan advocacy on both sides of the case will

best promote the ultimate objective that the guilty be convicted and the innocent

go free."].)

Finally, respondent argues any error was harmless, because attorneys

Dougherty and Gillis were later appointed to represent Mr. Lightsey, and they

twice requested Judge Kelly to declare a doubt of Lightsey's competence, and

were twice denied. (RB 81.) This hardly reduces the prejudice of failing to

appoint counsel earlier and wrongfully finding Mr. Lightsey competent.

Oddly, the point respondent appears to be making is that appointment of

counsel for the competency hearing would not have made a difference because the

judge made the same finding when Lightsey had counsel as when he was in pro

per. The logic of this is flawed on several levels. First, it is not known what the

judge would have decided had Lightsey had had counsel and a contested hearing

with the presentation of evidence and witnesses during the pretrial competency

proceedings. Counsel would almost certainly have insisted on the right to a trial

on the issue of competency, and the judge or jurors may very well have come to a

different conclusion upon hearing the testimony of the appointed experts.

Second, the two times Gillis and Dougherty asked for suspension of

proceedings, the judge did not make the same ruling; he refused even to declare a

20

doubt in the face of overwhelming evidence that Lightsey could not rationally

participate in the trial and the judge's own observation that he did not seem to

understand the seriousness of the charges, unlike the first hearing where a doubt as

to Mr. Lightsey's competence was declared and proceedings suspended.

Respondent also makes the argument, certainly unique if nothing else, that

the error in letting the unrepresented Mr. Lightsey waive his right to jury trial was

harmless, because there was no reasonable likelihood that he would have been

found incompetent even with a jury trial. (RB 82-83.) Of course, respondent has

no way of knowing this because no trial ever occurred and no one ever heard the

full panoply of evidence that might have been presented had there been a trial.

(As noted below, Judge Kelly failed to understand that Dr. Velosa had in fact

found Mr. Lightsey to be incompetent to stand trial, but this would have been

explained to a jury by any competent appointed counsel.) Respondent appears to

base its argument on a passage in People v. Samuel, which respondent interprets as

implying that jury verdicts in competency hearings are not entitled to the same

deference on appeal as verdicts in criminal cases. In Samuel, this Court

overturned a jury's finding that the defendant was competent, holding that the

record did not show substantial evidence from which the jury could have found

competence. (RB 83, citing People v. Samuel (1981) 29 Cal.3d 489,505-506.)

The court's discussion in that case of why the jury's findings were not necessarily

entitled to the same deference as those of a criminal trial jury is arguably dicta in

the context of that case, since the court based its reversal on the lack of substantial

evidence, and in any event Samuel does not support the respondent appears to be

trying to take from it, which is that Lightsey was not prejudiced by the lack of a

jury trial because jury trials in competency proceedings do not mean that much.

2. Judge Kelly's Finding That Mr. Lightsey Was Competent toStand Trial Was Deficient Because He Did Not Understand ThatDr. Velosa Had Concluded that Lightsey Was Incompetent.

In a brief paragraph taking less than half a page, respondent argues, without

21

any truly supporting citations in support, that Judge Kelly understood that Dr.

Velosa had found Lightsey incompetent on the second prong of the test and that he

properly weighed the opinions of the experts and agreed with Dr. Manohara's.

(RB 82.) As previously demonstrated, this is incorrect. (AOB 90-91.) In fact,

Judge Kelly never even referred to Dr. Velosa's finding on the second prong of the

competency test, that Mr. Lightsey was incompetent because he was unable to

rationally assist his counsel. Instead, the judge said only that "Dr. Velosa,

although he reflects what I would suggest to be some reservation in that regard, he

does indicate that you are able to understand the nature and purpose of the

proceedings" (7/28/94 RT 106.) Dr. Velosa did not just have "some reservation,"

he made a formal finding that Mr. Lightsey was incompetent to stand trial.

Moreover, Judge Kelly apparently never noticed that Dr. Manohara did not

even include in his report - one way or the other - an opinion as to the second

prong of the competency test. The trial court certainly never mentioned this total

lapse by Dr. Manohara. (AOB 90-91.) Given Dr. Manohara's misgivings,

articulated in his report, about Lightsey's paranoia, distrust, and difficulty in

working with counsel, it appears likely that Dr. Manohara might have agreed with

Dr. Velosa if this omission had been brought to his attention by either the trial

court or properly appointed trial counsel for Mr. Lightsey.

The record is plain that Judge Kelly failed to notice the crucial issue in this

proceeding: that Dr. Velosa, an experienced court-appointed expert, found Mr.

Lightsey to be incompetent to stand trial and that Dr. Manohara (though his

evaluation was less thorough and his report incomplete) did not disagree. Given

Judge Kelly's basic failure to follow the most elementary principles of

competency proceedings, no deference is required towards Judge Kelly's flawed

rulings in this regard.

F. The Jurisdictional Defects of the Competence Proceedings Were NotCured by the Subsequent Hearing On August 2, 1994 In Which theCourt Purported to Determine Mr. Lightsey's Competence toRepresent Himself.

22

Respondent next argues that the August 2, 1994 hearing on whether Mr.

Lightsey was competent to represent himself was actually a full-blown hearing on

the issue of whether Mr. Lightsey was competent to stand trial, thereby curing any

errors from the earlier July 28, 1994 hearings. (RB 85-94.) In particular,

respondent recites the Godinez v. Moran standard that equates trial competence

with competence to represent oneself, and summarizes the experts' testimony at

the August 2 hearing at length, as if it were a hearing on competence. (RB 85,

citing Godinez v. Moran (1993) 509 U.S. 389, 399-400.)

However, Judge Kelly and the prosecutor at the hearing made plain that this

was a hearing on Mr. Lightsey's right to continue to represent himself, and

nothing else. (See AOB 95-96.) The issue of whether Mr. Lightsey was

competent had already been settled in the court's mind in the previous competency

proceedings. The criminal proceedings were no longer suspended; the August 2

hearing was simply one on the issue of whether the court should accept Mr.

Lightsey's Faretta waiver and permit him to continue to represent himself. 5

In fact, the prosecution was adamant, both at that hearing and later in trial,

that the only question before the court in that hearing was the narrow one of

whether Lightsey was capable of making a knowing and intelligent waiver of his

right to counsel. The district attorney's position was correct: the proceedings

5 Moreover, the portion of Godinez relied on by respondent has been shown to beinapplicable to the facts ofMr. Lightsey's case, by the new 2008 U.S. SupremeCourt case of Indiana v. Edwards (2008) 128 S.Ct. 2379. In Edwards, the HighCourt noted that, notwithstanding its previous opinion in Godinez, it was nowholding that there was a separate "gray area" distinguishing the "minimalconstitutional standard to stand trial and a somewhat higher standard that measuresmental fitness" for the purposes of representing one's self at trial. (Indiana v.Edwards, supra, 128 S.Ct. 2379, 2385 [expressly narrowing the scope of its earlieropinion in Godinez].) The High Court went on to expressly rule that the Godinezopinion was limited to the issue of entering a guilty plea, and never meant to applyto the issue of representing one's self at trial, as was the issue in Mr. Lightsey'scase. (Ibid.) Godinez is therefore inapplicable. Mr. Lightsey's hearing wasfocused on this limited "gray area," with the more substantial issue of Mr.Lightsey's competency already decided long before the proceedings. (Ibid.)

23

were not suspended at that point - a fact even Judge Kelly recognized; the hearing

was simply an evidentiary hearing on Lightsey's Faretta waiver and did not

implicate the question of Lightsey's competence to stand trial.

The trial judge ruled only on the narrow question of Lightsey's ability to

make a knowing and intelligent waiver of counsel. The district attorney held

strongly to the narrow focus of the inquiry, arguing that the only question before

the court was the validity of Mr. Lightsey's waiver of counsel, not his competence

to stand trial. (RT 8/2/94) 267-272.) Even later, during trial, the district attorney

argued vehemently that the issue at the August 2 hearing was not Lightsey's

competence, but merely his capacity to waive counsel. (29 RT 6209, 30 RT

6403.)

For respondent now to take a position on appeal contrary to the

prosecution's position at trial violates the principles of judicial estoppel: the

prosecution, having argued one position successfully at trial, cannot take a

contrary position on appeal. As the Ninth Circuit has explained:

"[U]nder the doctrine of judicial estoppel, the state cannotnow reverse its position in order to suit its currentobjectives. 'Judicial estoppel, sometimes known as thedoctrine of preclusion of inconsistent positions, precludes aparty gaining an advantage by taking one position, and thenseeking a second advantage by taking an incompatibleposition.' Rissetto v. Plumbers & Steamfitters Local 343 (9th

Cir. 1996) 94 F.3d 597, 600. 'Judicial estoppel is anequitable doctrine that is intended to protect the integrity ofthe judicial process by preventing a litigant from playingfast and loose with the courts.' Wagner v. Prof'l Eng'rs inCal. Gov't (9th Cir. 2004) 354 F.3d 1-36, 1044. Thisdoctrine applies to a party's legal as well as factualassertions." (Whaley v. Belleque (9th Cir. 2008) 520 F.2d997,1002.)

This Court has also expressly "recognized" the applicability of the "judicial

estoppel" doctrine to criminal trials. (People v. Williams (2008) 43 Cal.4th 584,

622, fn. 21, citing In re Sakarias (2005) 35 Cal.4th 140, 155-156; Russell v. Rolfs

24

(9th Cir. 1990) 893 F.2d 1033, 1037-1039; see also Sechrest v. Ignacio (9th Cir.

2008) 549 F.3rd 789, 805 [barring State, on "judicial estoppel" grounds, from

raising inconsistent claims in District Court and Ninth Circuit].) For the

prosecution to now argue that these hearings were for the purpose of deciding Mr.

Lightsey's competency, after so vociferously arguing the contrary at trial, would

both violate principles of judicial estoppel and be an act of "'chutzpah' in the first

degree, by any standard." (Whaley v. Belleque, supra, 520 F.3d 997, 1002

[reversing district court decision on collateral estoppel grounds].)

Respondent also misstates what actually occurred at this limited hearing.

Specifically, respondent falsely argues that only one of the experts opined that

Lightsey had a mental illness, apparently relying on the fact Dr. Velosa said Mr.

Lightsey was suffering from a bipolar disorder. (RB 93.) However, Dr. Manohara

also opined that while Mr. Lightsey did not have a "clear-cut psychotic disorder,"

he did have an Axis II illness, narcissistic personality disorder, and described signs

and symptoms of serious mental illness: paranoid symptoms, grandiosity, and

circumstantiality." Nor did Dr. Burdick find Mr. Lightsey had no mental illness.

Instead, Dr. Burdick said only that in his brief interaction with Mr. Lightsey, he

did not see anything obvious.

Thus, two experts said Mr. Lightsey was suffering from a mental disorder,

and one said he did not see him long enough to tell one way or the other. 6

G. The Fourth Motion by Advisory Counsel Gillis and Mr. Lightsey'sRelinquishment of his Pro Per Status.

Like the five defense attorneys before him, advisory counsel James Gillis,

who replaced McKnight, soon came to the conclusion that Mr. Lightsey was

mentally incompetent to stand trial. On September 12, 1994, Gillis, as Ralph

McKnight had before him, filed a motion to revoke Mr. Lightsey's pro per status,

6 Furthermore, at the August 2 hearing, both Dr. Manohara nor Dr. Velosa testifiedabout Mr. Lightsey's various symptoms of mental illness and stated they did notconsider Mr. Lightsey mentally competent to represent himself at trial. (RT(8/2/94) 134, 174,239, 264.)

25

on the ground that Mr. Lightsey was not mentally competent to serve as his own

attorney. (4 CT 1129.) Respondent fails to respond to Mr. Lightsey's argument

that during these proceedings Judge Kelly should have declared a doubt as to Mr.

Lightsey's competency and suspended proceedings. (AOB 96-98.)

Instead, respondent makes several unsupportable arguments and false

assertions. (RB 83.) First, respondent argues that Judge Kelly properly found Mr.

Lightsey competent on July 28, 1994, as the basis for its further argument that

Judge Kelly did not have to declare a doubt unless he found changed

circumstances since his last competency finding. Yet, as previously demonstrated,

Mr. Lightsey never received a proper competency hearing: the proceedings before

Judge Felice in March of 1994 were procedurally and factually flawed, and in

July, 1994, he was permitted to waive competency proceedings.

Respondent argues, "Gillis's statements did not raise a question as to

appellant's ability to understand the nature of the proceedings or assist counsel in

his defense. Gillis failed to present the trial court with evidence that appellant's

conduct was due to a mental disorder or developmental disability that rendered

him incapable, as opposed to unwilling, to assist in his defense." (RB 85.) The

record shows otherwise.

In both his sealed and unsealed declarations in support of the motion, Gillis

outlined Mr. Lightsey's paranoid delusions and his belief in a grand conspiracy

against him, and stated that he felt Mr. Lightsey was mentally incompetent,

explaining in detail how his paranoid delusions barred him from assisting advisory

counsel in conducting a proper investigation or preparing for trial. (4 CT 1130

1141.) Gillis outlined in detail Mr. Lightsey's obsessive fixation on his theories

that a grand "conspiracy" was using "forged transcripts" against him, and asserted

that Mr. Lightsey was therefore both "incompetent" to stand trial and unable to

"knowingly and intelligently" waive counsel. (4 CT 1129-1138.) He also noted

how Mr. Lightsey's "paranoid delusions" made it impossible for Mr. Lightsey to

focus on his very strong alibi defense, in that he believed the transcripts that

26

provided him with an alibi had been forged. (4 CT 1139-1142.) Based on the

strength of this evidence, Judge Kelly erred in not suspending proceedings and

holding a new competency hearing.

H. The Court Erred in Refusing to Declare a Doubt of Mr. Lightsey'sCompetence During His Trial, Despite Obvious Indications That Mr.Lightsey Continued to Be Unable to Rationally Understand theProceedings or Cooperate with Counsel and Despite Evidence That HisCondition Was Deteriorating Over the Course of the Trial.

As previously demonstrated, Mr. Lightsey's mental state continued to

deteriorate as his paranoid delusions swamped his already meager and

constitutionally inadequate ability to follow the trial and cooperate with counsel.

(AOB 98-113.) Twice during his trial, his attorneys asked Judge Kelly to declare

a doubt of Mr. Lightsey's competence, and Judge Kelly refused to do so.

Respondent responds by again arguing that trial counsel Gillis and

Dougherty had to show changed circumstances to warrant renewed competency

proceedings. (RB 94.) However, as previously demonstrated, this is based on the

false assumption that Judge Felice's prior finding of competence was properly

made, and that proceedings before Judge Kelly were both properly conducted and

dealt with the issue of competency, rather than self-representation.

Respondent's own citations to the record are practically a concession that

trial counsel Gillis made repeated arguments presenting changed circumstances.

(RB 95-96.) Indeed, Gillis's second written motion, filed during Mr. Lightsey's

trial, elaborated even further on Mr. Lightsey's deterioration and his inability to

work rationally with his attorneys; Gillis also pointed out that the July 28

competency hearing was deficient because there was no true adversarial

proceeding. At the hearing, Judge Kelly admitted that he had not even read the

motion (29 RT 6218), confused the hearing of August 2 with a competency

hearing (Ibid.), and insisted that he saw no evidence that Mr. Lightsey was

incompetent, until Mr. Lightsey interrupted him so many times that he called a

recess to discuss gagging him. (29 RT 6225-6226.)

27

Respondent nevertheless argues that appellate counsel deceptively cited

"snippets" from the record to overemphasize Mr. Lightsey's mental impairments,

and that many of his comments could be viewed as simple "hyperbole." (RB 103.)

Hardly. Mr. Lightsey's rambling and insane interruptions and distractions

continued unabated through his trial. (1 RT 102, 104, 106, 118, 120-122, 139

140; 14 RT 3088-3089, 3097; 15 RT 3223-3226,3380-3383, 3226-3228, RT

3383; 24 RT 5136-5138,5380-5384; 26 RT 5517-5520,5570,5740-5741, RT

5767; 27 RT 5871,6144.) The judge was reduced to repeatedly threatening to

have Mr. Lightsey gagged or removed from counsel table or the courtroom.7 (15

RT 3226,3383; 24 RT 5136; 25 RT 5381-5384; 26 RT 5518-5520.)

Mr. Lightsey's two in pro per interlocutory petitions filed during trial to the

Fifth District Court of Appeal are also replete with substantial and compelling

indicators of Mr. Lightsey's incompetence. They include extensive and strange

scribblings on the margins of documents, which to even a layman's eye would

appear to be the work of a madman, with odd comments about "fraud,"

"conspiracy," "forged documents," and strange claims that his defense pleadings

were in fact secretly drafted by Deputy District Attorney Green. (21 Supp CT

6199-22 Supp. CT 6450.) Even a cursory glance at these materials, which were

before the trial court and are part of the appellate record, provide strong indicators

that Mr. Lightsey was a profoundly disturbed man SUffering from extensive mental

impairments. Mr. Lightsey's penalty phase testimony was rambling and full of

digressions into his school and work history, his medical problems, and pervasive,

7 Nor was the trial court the only one disturbed by the mental incompetencyproduced 'ramblings' of Mr. Lightsey at trial. During the course of the trial, FifthDistrict Court of Appeal staff, angrily responding to Mr. Lightsey's in pro perinterlocutory petitions and letters, also referred to him as "rambling" and overly"emotional" in a letter drafted by Kevin Clark, Clerk of the Court of the FifthDistrict, to Mr. Lightsey. (21 Supp. CT 6298.) After the trial, the Presiding Judgeof the Kern County Superior Court also wrote a personal letter to Mr. Lightseycriticizing him for his "rambling" statements, and returning unfiled Mr. Lightsey's150-page tract on the alleged conspiracy against him. (21 Supp. CT 6191.)

28

delusional claims of perjured testimony and forged documents. It proffered

further compelling evidence for the court of Mr. Lightsey's sad and often pathetic

mental incompetence.

During his testimony, he often gave completely unresponsive answers to

questions from his attorneys. He expounded on his belief that the district

attorney's office was pursuing a vendetta against him because he had been

acquitted in a high profile child molestation case and because he had been a juror

in a criminal case in which the defendant had been acquitted. He listed the

government officials, organizations, and individual lawyers to whom he had

written, to "try to get outside intervention from the insurmountable amount of

judicial fraud crimes that have taken place in my case." (30 RT 6447.)

He denied the alibi defense that had been presented at the guilt phase,

claiming instead that he had never been in Department 10 on July 7, 1993, but had

instead spent the entire day, morning and afternoon, in a different courtroom, and

that a different prosecutor, not Somers, was in court on his case that day. (30 RT

6448.) He continued to digress into discussions of subjects well beyond the focus

of his testimony, such as his swimming medals and allegations of corruption

against the Kern County police in other matters. (30 RT 6473.) He testified about

his belief that he and his mother were in court together all day on July 7, 1993, and

accused everyone who had contradicted this, including defense witnesses, of lying.

(30 RT 6488-6494.) Even Judge Kelly conceded that Mr. Lightsey'S behavior

constituted "bizarre conduct." (32 RT 6859-6863.)

Indeed, in the context of responding to Mr. Lightsey's denial of the right to

allocution argument (Arg. 10), respondent provides extensive quotations

highlighting both Mr. Lightsey's aberrational behavior and the comments on such

behavior by the trial court and others. (RB 204-221.) As respondent noted, the

exasperated trial court noted that Mr. Lightsey would continually "talk audibly

during the proceedings. And I told you, on the defense side of this process, given

this speech so many times I'm sick of hearing myself give it." (RB 204, citing 24

29

RT 5136.)

The court further noted that Mr. Lightsey's uncontrolled outbursts were

hurting him:

"In addition to that, I've noted that the defendant'scommences to talk to counsel as the jurors are being excused andwalking from the courtroom. And he stands. And he's talkingwith [sic] generally with Mr. Gillis, not talking with him, talkingat him, I should say. I don't think Mr. Gillis is a participant inthat conversation. Mr. Gillis appears to be pointing at the yellowpad every time that Mr. Lightsey chooses to make a statement,which I heard this morning several times such as he's lying beingsaid audibly. And I'm sure, Mr. Gillis, you as well have heardthat statement, have you not, sir?

MR. GILLIS: Yes, your Honor. And I think I understandwhat the court's talking about because I somewhat inferred fromthe court requesting a recess that it was going to discuss thisparticular matter. And I have attempted to both [sic] before Iwalked outside the court, I've explained to Mr. Lightsey that he'sgone too far. He needs to keep his mouth shut and writeeverything down on the pad and his is not to communicate at allto me. I can appreciate the court's indulgence so far during thistrial.

THE COURT: One of the things that I need to point outevery time that I make this observation is directed to thedefendant and that is it can do nothing but hurt his interests."(RB 204, citing 24 RT 5136-5137, emphasis added.)

As the respondent also conceded, the trial court expressly noted at trial that

Mr. Lightsey's repeatedly made uncontrolled facial expressions, noting Mr.

Lightsey "continued to make these expressions even after Mrs. Green's most

recent remarks, he talked to Mr. Gillis. And I just can't understand why he

continues to that in the face of what the court has advised him. It can't help him.

It can't help in his interests in this case to be continually animated with pleasure

or displeasure, whichever it may be, such as the glares that he was trying on with

Mr. Rowland yesterday and expressed with this most recent witness who was in

court and his nodding." (RB 204, citing 25 RT 5371-5372.)

As respondent concedes, even the trial court noted that these outbursts were

30

part of an inability of Mr. Lightsey to focus enough to control himself. As the trial

court put it: "And I guess maybe it's a memory factor, but we just can't tolerate

that. And I have suggested on past occasions, at least a half dozen times, this

observation and the concern that the Court has, because I am sure that if he's

successful at all in displaying any of the conduct to the jurors, who have kind of

actually postured themselves to not even look at him, the Court has noted - but if

he's been able to cause any influence at all on the jurors, I'm sure it's to his

detriment." (RB 207, citing 26 RT 5517-5520, emphasis added.)

Respondent goes on in this same argument to concede that Mr. Lightsey

expounded on his bizarre conspiracy theories, citing the following exchange:

"MR. DOUGHERTY: However, the hardest part of thecase was Mr. Lightsey. Mr. Lightsey does not understand what isgoing on. He doesn't understand what's going on.

THE DEFENDANT: You came to Bakersfield, becamepart of the conspiracy and you took fifteen thousand dollars frommy family.

MR. DOUGHERTY: Mr. Pierce ...THE COURT: Mr. Lightsey, please.MR. DOUGHERTY: Dr. Pierce was selected long before

we entered the case. Mr. Gillis and I have tried to be as objectiveas we possibly can, not be personally involved in the case, presentthe case to you in absolutely the best light we can.

MR. LIGHTSEY: Intentionally threw the case to suppressevidence." (RB 208-209, citing 32 RT 6853-6862.)

During sentencing, Mr. Lightsey interrupted the hearing with numerous

comments and attempts to disqualify the judge and his counsel, until the judge

declared a recess and had him gagged and his hands cuffed behind him. (8/15/95

RT 6964-6965.) Even gagged, Mr. Lightsey continued making noise and at one

point struggled free of the gag to scream out in court. (8/15/95 RT 6965-6966

6975.)

These actions were not "hyperbole" or isolated "snippets" of speech. They

were the bizarre actions of a profoundly incompetent man struggling,

unsuccessfully, to deal with the consequences of his grave mental illness.

31

I. These Errors Violated Mr. Lightsey's Constitutional Rights

Respondent expressly declines to make any waiver argument, fully

conceding that any violations of Mr. Lightsey's constitutional rights may be

addressed on the merits. As previously demonstrated (AOB 115-116), a State's

trial of a mentally incompetent defendant violates due process. (U.S. Const.,

Amend. XIV; Pate v. Robinson, supra, 383 U.S. 375,383; see also Dusky v.

United States, supra, 362 U.S. 402, 402-403; see also People v. Weaver (2001) 26

Cal.4th 876, 903 [same], citing Medina v. California (1992) 505 U.S. 437, 448;

People v. Dunkle (2005) 36 Cal.4th 861, 885 [same].) It also violates the

constitutional due process right to a fair trial. (U.S. Const., Amends. VI and XIV;

Pate v. Robinson, supra, 383 U.S. 375, 385.) Mr. Lightsey's judgment and

sentence of death must be reversed, because his constitutional right not to be tried

while incompetent was violated.

J. The Error Requires Per Se Reversal.

Respondent apparently concedes that any error would require per se

reversal, as she does not in any way respond to or challenge Mr. Lightsey's

arguments in this regard. This is only proper, given that due to the "difficulty of

retrospectively determining an accused's competence to stand trial," a violation of

the right to an "adequate hearing" on "competency to stand trial" usually requires

per se reversal. (Pate v. Robinson, supra, 383 U.S. 375, 386-387, citing Dusky v.

United States, supra, 362 U.S. 402, 403.) Such per se reversal is required, without

attempting to resort to a nunc pro tunc determination, because a new competency

"jury would not be able to observe the subject of their inquiry" at the time a claim

of incompetency was relevant, i.e. in the instant case a new competency jury could

not directly observe Mr. Lightsey's state of mind in 1993-1995. (Pate v.

Robinson, supra, 383 U.S. 375,387.) Similarly, new "expert witnesses would

have to testify solely from information contained in the printed record," rather

than doing an examination of the defendant. (Ibid.) Moreover, "the failure of the

trial court to comply with the statutory [competency] requirements affects the

32

fundamental integrity of the court proceedings." (People v. Castro, supra, 78

Cal.App.4th 1402, 1418.)

Accordingly, these errors require reversal of Mr. Lightsey's conviction and

sentence of death.

K. Conclusion

With one exception, the trial court did nothing substantial to respond to the

issue of Mr. Lightsey's manifest and painfully obvious mental incompetence: to

avoid having to hear anymore of the - to use the words of the court - "ramblings"

of this sad example of a profoundly mentally incompetent man, the court bound

and gagged him with duct tape.

This was the trial court's response to Mr. Lightsey's mental incompetence,

and this is the bound, gagged, and shackled image of the man the trial court

determined to be competent:

II

33

II.

MR. LIGHTSEY'S CONVICTIONS AND SENTENCE OF DEATH MUSTBE REVERSED BECAUSE THE TRIAL COURT PREJUDICIALLY

ERRED IN REFUSING TO ADMIT EVIDENCE OF HIS ALIBI.

A. Respondent's Contention"a PPPT T a l\TT J..T a ~ P()DPPTTPn J..TT~ p\TTnpl\TTTII. DV r'T 1\ Tl\..f~

............ ~.&....J~.l ...... 'I.&. ..L.A. ...... IoJ .L '-'.&.'-..L L..J.L ... A.JAJ ........ .a.\,J L.J ~ ..... AJL..J.l., ........ 1. )",.1..'-..1.. '-".L.JJ. ... .J..J." .....u

REGARDING THE ADMISSION OF THE REPORTER'S TRANSCRIPT OF

THE UNRELATED CASE; THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION AND DID NOT VIOLATE APPELLANT'S CONSTITUTIONAL

RIGHTS IN RESTRICTING THE DEFENSE COUNSEL'S CLOSING

ARGUMENT BECAUSE IT WAS NOT SUPPORTED BY THE EVIDENCE."

B. The Trial Court Prejudicially Erred in Excluding the Alibi Transcript

As previously demonstrated (AOB 119-130), Mr. Lightsey had an

unusually strong alibi to the charged murder, in that he was in court for a hearing

regarding his bail on another case during the morning the homicide occurred. The

prosecution's theory was that Mr. Lightsey murdered Compton after leaving court,

assaulting Compton as he was about to take a shower before leaving for his 11 :30

medical appointment. Accordingly, the question of when Mr. Lightsey's court

hearing ended was the crucial disputed issue at his guilt trial. Incredibly,

however, the trial court refused the defense's repeated requests to introduce the

transcript of the morning's hearings into evidence, or at least to argue in closing

arguments that the transcripts indicated a particular passage of time. (There were

sixty pages of transcript of various hearings held prior to Mr. Lightsey's court

hearing that day, and it was the defense's theory that this helped show that he was

in court too long and too late in the morning to have time to commit the murder

that morning.)

The court's rulings excluding this evidence and argument were erroneous

and effectively gutted the efforts of Mr. Lightsey's attorneys in establishing his

alibi defense, as this transcript provided crucial unbiased evidence in support of

34

the alibi. (People v. Babbitt (1988) 45 Cal.3d 660; People v. Linder (1971) 5

Cal.3d 342; Evid. Code, § 352.) The errors also violated Mr. Lightsey's

constitutional right to raise a defense, to present evidence in support of his

defense, to a fair trial with due process of law, and to a proportionate and reliable

verdict of death. (Crane v. Kentucky (1986) 476 U.S. 683; Chambers v.

Mississippi (1973) 410 U.S. 284; Gonzales v. Lytle (1oth Cir. 1999) 167 F.3d 1318;

Rosario v. Kuhlman (2nd Cir. 1988) 839 F.2d 918; U.S. Const., Amends. 5, 6, 8,

and 14; Cal. Const., art. 1, §§ 7,15,17 and 28.) Reversal is therefore required,

because the error cannot be shown to be harmless beyond a reasonable doubt.

(Chapman v. California, supra, 386 U.S. 18,24.)

C. Mr. Lightsey Repeatedly Raised the Issue of Admitting the ExcludedTranscript, Preserving the Issue for Appellate Review

Respondent's primary argument is that Mr. Lightsey forfeited the issue on

appeal, because he did not repeatedly re-raise the issue again and again after the

court denied his many requests to introduce the excluded evidence. (RB 104-119.)

This is erroneous. At trial, defense counsel expressly moved to introduce the

transcript into evidence before the jury. (14 RT 3144.)8 The trial court, however,

denied the motion, ruling that the evidence could not properly be used "to try to

urge them to speculate on a certain time frame," making plain that the trial court

understood the defense was seeking to introduce the evidence to show a particular

passage oftime.9 (4 RT 3157.) During the defense case-in-chief, the defense then

8This was actually the third time the issue came before the court. In their originalpre-trial motion to have the full transcript of the morning calendar prepared, thedefense specifically noted the importance of the transcript noting that it wasnecessary to "specifically establish the defendant's whereabouts on July 7, 1993,between 8:00 a.m. and 12:00 p.m.," and that the defense had "no other means bywhich to obtain this information." (2 Supp. Conf. CT 439.) Next, the defenseagain tried to move the transcript into evidence in the context of Mr. Lightsey'smotion to dismiss the case pursuant to Penal Code section 995, but the courtdeclined to rule on the issue at that stage of the proceedings. (3/22/95 RT 108111.)9 While the court alternatively permitted the prosecution to introduce extracts from

35

again raised the issue of admitting the entire "transcript" of the morning calendar,

but the trial court again refused to either directly address the issue or allow the

transcript to be admitted into evidence. (27 RT 5740.) After the close of

evidence, the defense raised the issue a thirdlO time, urging the court to at least

allow them to argue to the jury that they could use the length of the transcript to

estimate the passage of time. (27 RT 5784-5787.) However, the court refused this

request as well. (27 RT 5802-5803.) After such repeated denials, any further

request would have been futile. (People v. Brown (2003) 31 Cal.4th 518, 553.)

More importantly, California law does not demand that a defendant raise the same

issue four or more times in order to preserve the issue for appeal. Respondent

certainly cites no authority for this proposition.

Indeed, in other contexts, respondent concedes this point by pointing out

the many times Mr. Lightsey did try to introduce the evidence and gain permission

to make the argument. As respondent concedes, the trial court expressly ruled

that it "disagreed" with the defense motion to introduce the entire transcript to

show a passage of time. (RB 109.) Later, respondent again conceded that the trial

court expressly held that "I think it's pretty clear what the position of the court is.

I'm not going to allow for any argument to be made that equates numbers of pages

in the transcript to amounts of time because there's no evidence to support that."

(RB 118, citing 27 RT 5803.) Notwithstanding Mr. Lightsey's repeated arguments

and motions to admit the evidence to show a passage of time, and these

concessions from the prosecution that the court was very well aware that the

defense wanted to introduce the sixty transcript pages to show the passage of a

the morning transcript that covered the three brief hearings in Mr. Lightsey's bailcase during its case-in-chief, that was oflittle assistance to proving Mr. Lightsey'salibi. (See, e.g., Exhs. 168 & 169 [extracts from RT of hearing].) What wasimportant to the defense was when these three hearings occurred, not whatoccurred during the hearings on the morning of the homicide.10 This was actually the fifth time the defense raised the issue, counting the twopre-trial motions discussed, supra.

36

particular "amount of time," respondent still argues that Mr. Lightsey failed to

advise the court of the "substance, purpose, and relevance of the excluded

evidence." (RB 118.) Yet even respondent concedes that the trial court very well

understood the defense's reasoning as to the "substance, purpose, and relevance of

the excluded evidence," in that the court knew it was to show the passage of an

"amount of time." Respondent's waiver argument is therefore without merit.

D. The Trial Court Erred in Excluding the Evidence

1. Violation of Equality of Arms Principles

As respondent also concedes, the trial court did allow the prosecution to

argue that the page length of the transcript showed a particular passage of time,

even though it barred the defense from doing the same thing. (RB 125-128.)

While respondent argues this was perfectly appropriate, constitutional principles

of fundamental fairness are plain that due process must be a "two-way street."

(Wardius v. Oregon (1973) 412 U.S. 470,475.) In Wardius, as in Mr. Lightsey's

case, the trial court erroneously excluded evidence of the defendant's "alibi" on

state law evidentiary grounds. (Ibid. [reversing conviction based on error in

excluding alibi evidence under 'one-way' state discovery rules].)

However, as the U.S. Supreme Court has explained: the "Due Process

Clause" demands that there be a "balance of forces ['equality of arms'] between

the accused and his accuser." (Id. at p. 474.) Put another way, due process

equality of arms principles demand that what is "sauce for the goose is sauce for

the gander." (United States v. Bay (9th Cir. 1985) 762 F.2d 1314, 1315 [reversing

conviction on equality of arms principles where defense denied evidentiary benefit

available to prosecution]; see also United States v. Carabello-Cruz (15t Cir. 1995)

52 F.3d 390,393 [reversing conviction due to unbalanced application of

evidentiary rules because "what is sauce for the defendant's goose is sauce for the

government's gander"].)

Respondent next argues that there was no error, or at least the error was

waived, because the trial court took judicial notice of the entire transcript. (RB

37

121.) But the fact that the trial court, with the defense's agreement, found the

transcript admissible for consideration by the judge did nothing to mitigate the

court's error in barring the jury from considering the same evidence, and barring

defense counsel from making arguments on the evidence. Rather, the court's

decision that the transcript was proper for judicial notice and for the prosecution to

make arguments about, but not for the jury to consider or for the defense to make

arguments about profoundly shows the trial court's lack of partiality. This 'one

way' series of rulings by the court violated constitutional principles of fairness that

due process must be a 'two-way street,' and the well-settled maxim that 'what is

sauce for the defendant's goose is sauce for the government's gander.' (Wardius

v. Oregon, supra, 412 U.S. 470, 475; United States v. Bay, supra, 762 F.2d 1314,

1315; United States v. Carabello-Cruz, supra, 52 F.3d 390,393.) The court erred

in excluding the transcript and the argument based on the transcript.

2. The Evidence Was Not Speculative

As previously demonstrated (AOB 123-129), the excluded evidence fell full

square into common evidentiary relevance principles, and the court erred in

excluding the transcript and argument based on the transcript.

While respondent argues (RB 130-131) that the trial court proper!y

excluded the transcript as being too "speculative" under Evidence Code section

352 principles, this is incorrect. Section 352 permits courts to exclude speculative

evidence where its "probative value is substantially outweighed by the probability

that its admission will (a) necessitate undue consumption of time or (b) create

substantial danger of undue prejudice, of confusing the issues, or ofmisleading the

jury." (Evid. Code, § 352, emphasis added.) "Speculative" evidence is only

evidence that does not "have a tendency in reason" to "prove or disprove a

disputed fact." (People v. Babbitt (1987) 45 Ca1.3d 660, 681, citing People v.

Plane (1979) 88 Cal.App.3d 223,244.) As demonstrated (AOB 125-128), the

transcript and its length of pages did "have a tendency in reason" to prove the

"disputed fact" of how long the court hearing took, and whether Mr. Lightsey had

38

time to commit the charged homicide. (Ibid.)

Respondent claims that Gonzales v. Lytle nevertheless supports their

argument that the exclusion of this crucial evidence was proper, claiming its facts

are totally unrelated to the situation in Mr. Lightsey's trial. (RB 124, citing

Gonzales v. Lytle (1oth Cir. 1999) 167 F.3d 1318 [reversing murder conviction

where alibi transcript erroneously excluded by court].) However, the exact

opposite is true: that case has very similar facts, including the wrongful exclusion

of a transcript providing an alibi. In Gonzales, the trial court erroneously excluded

a "transcript" of a previously held hearing, as the court did in Mr. Lightsey's case.

(Id. at p. 1321.) As the Gonzales court explained, the exclusion of the transcript

[which provided an alibi for the defendant in the form of a witness's statement that

he was with the defendant when the crime was committed] required reversal as it

rendered the "trial fundamentally unfair in violation of the Fourteenth Amendment

due process clause." (Ibid.) Similarly, the exclusion of the alibi transcript in Mr.

Lightsey's case also rendered his trial 'fundamentally unfair,' requiring reversal of

his conviction and sentence of death.

Alternatively, respondent argues that the DePetris case supports their

argument on similar grounds. (RB 125, citing DePetris v. Kuykendall (9th Cir.

2001) 239 F.3d 1057 [reversing murder conviction due to erroneous exclusion of

both documentary evidence and defense argument based on that document].)

Again, however, this case actually supports Mr. Lightsey's argument that his

constitutional rights were violated. In DePetris, the Ninth Circuit held the

wrongful exclusion of defense evidence on California state law ground in that case

was "not mere evidentiary error," but also "unconstitutionally interfered with

petitioner's due process right to raise a defense." (Id. at p. 1059.) As the Court

explained:

"The right of an accused in a criminal trial to due process is,in essence, the right to a fair opportunity to defend against aState's accusations." (Chambers v. Mississippi (1973) 410U.S. 284, 294; accord Davis v. Alaska (1974) 415 U.S. 308,

39

317; Washington v. Texas (1967) 388 U.S. 14, 19.) TheSupreme Court has made clear that the erroneous exclusion ofcritical, corroborative defense evidence may violate both theFifth Amendment due process right to a fair trial and the SixthAmendment right to present a defense. [citation]."

There, the excluded evidence was in the form of a journal that helped show

the defendant did not have the state of mind necessary to convict of murder.

Beyond excluding the journal, the trial court, as occurred in Mr. Lightsey's case,

also barred any argument based on the excluded evidence. This required reversal

because the excluded "evidence was critical to [the defendant's] ability to defend

against the charge." (Id. at p. 1063.) Similarly, the excluded evidence and

argument in Mr. Lightsey's case was "critical" to his "ability to defend against the

charge" and its exclusion requires reversal of his conviction and sentence of death.

(Ibid.)

Respondent also argues that the Kraft case shows that the exclusion of the

entire transcript, as opposed to the admission of parts of it as occurred in Mr.

Lightsey's trial, was proper. (RB 122, citing People v. Kraft (2000) 23 Ca1.4th

978.) Again, however, that case actually supports Mr. Lightsey's argument. In

Kraft, the defendant appealed the denial of his exclusion motion to bar prosecution

documentary evidence in the form of an admittedly cryptic 'death journal,' which

could only be understood by a reader by using his or her subjective interpretation.

On appeal, this Court held the admission of evidence was proper, holding that

evidence is not "speculative" simply because a document may have "required

interpretation [for its significance] to be understood" by the jurors, and further

held that when part of a document is relevant there is "no impropriety in gleaning

the significance of the document as a whole." (Id. at pp. 1034.1035.) Similarly,

the transcript in Mr. Lightsey's case was not "speculative" simply because the

jurors would have "required interpretation" to estimate a passage of time, and the

court could have and should have admitted the excluded transcript "document as a

whole." (Ibid.)

40

Finally, respondent also claims that the constitutional bases of Mr.

Lightsey's claims have been waived. However, as noted supra, the exclusion of

Mr. Lightsey's evidence violated his fundamental, constitutional rights to due

process of law, to fundamental fairness, and to the right to raise a defense. Mr.

Lightsey is "not precluded from raising for the first time on appeal a claim

asserting the deprivation of certain fundamental, constitutional rights." (People v.

Vera (1997) 15 Ca1.4th 269, 276-277; see also People v. Cole (2004) 33 Ca1.4th

1158, 1195, fn. 6; People v. Partida (2005) 37 Cal.4th 428, 433-439.)

E. The Error Was Prejudicial.

Respondent claims any error in excluding the evidence could not have

prejudiced Mr. Lightsey in that the transcript could not have assisted his defense.

(RB 125.) Hardly. This transcript was a key piece of evidence going to the key

issue in the case: when Mr. Lightsey left the courtroom that morning and whether

he had time to commit the murder after he left the court and before Compton

stepped into the shower at his home. As demonstrated, supra, it was the critical

piece of evidence in the trial; indeed, the only absolutely unbiased evidence about

when Mr. Lightsey left the courtroom.

Relating to this issue, it must first be noted that respondent's argument

ignores other evidence on this timing issue. In respondent's discussion of

"relevant proceedings" (RB 105), respondent restates the trial prosecution's

evidence that the decedent was probably killed around 11 :00 a.m. as he was

entering the shower, but respondent completely ignores substantial evidence that

the victim must have started getting ready to take his shower even before then.

For example, respondent ignores testimony from several witnesses that it took 10

minutes to drive from the decedent's home to the clinic where he had an 11 :30

medical appointment that morning, and that Mr. Compton habitually arrived 15

minutes early to his medical appointments. (See, e.g., 15 RT 3427,3439.) Taken

together, this shows he would have been planning to leave his house at 11 :05, and

would have started his shower long before then, and would have been accosted by

41

his killer closer to 10:45 at the latest. Thus, all Mr. Lightsey had to show was that

if he left the courtroom at 10:40 or later, it would have been impossible for him to

walk with his mother to her car, drive home with her, pick up his own car, drive to

Compton's house, confront Compton, and commit the murder. The sixty pages of

excluded transcripts were crucial evidence in proving this highly contested and

crucial fact.

The defense also proffered evidence from court reporter Diane Daulong

that the morning calendar was customarily not called until sometime between 8:45

and 8:55 a.m., testimony from his defense attorney at that hearing that showed that

the morning calendar did not start until 9:00 a.m., and evidence from the court

reporter that the mid-morning break indicated on the transcript always lasted at

least ten minutes or longer. (23 RT 5024-5025,5062; 25 RT 5396-5397.) This

means that in order for Mr. Lightsey to have left at 10:40 a.m. - and then

hurriedly walk to his car, drive his mother home, go to Mr. Compton's house, and

accost, torture, and kill him before 10:45, or 11 :00 at the latest - all twenty-two

matters heard on the morning court calendar that day, before Mr. Lightsey left,

including a lengthy mid-morning break, would have had to have been heard in 90

minutes or less.

However - due to the wrongful exclusion of this crucial evidence - the

jurors never knew that there were these twenty-two hearings covering sixty pages

of transcript during this key period. The error in excluding the evidence could

hardly be shown to be harmless, given that the jurors may very well have believed,

as common sense would dictate, that a court hearing and the pauses in between

might take four or so minutes each on average. Even if the jurors believed that the

Mr. Lightsey could have killed the decedent if he had left by 11 :00 a.m., the jurors

may very well have believed, as common sense would allow as a reasonable

possibility, that a court hearing and the pauses in between might take four or five

minutes each on average

It must also be recalled that in his trial testimony, prosecutor Somers

42

testified that the hearing in Mr. Lightsey's case did not begin until around 10:35

a.m. and conceded that he had testified at the preliminary examination that the

second calling of Mr. Lightsey's case did not even start until 10:45 a.m. (25 RT

5479-5481.) Diane Daulong also testified that when Mr. Lightsey's hearings were

finally held, they covered many matters that presumably would have taken some

time. (23 RT 5039-5043; see also Exh. 169.) Dominic Eyherabide, Mr.

Lightsey's defense counsel at the July 7 appearance testified that after Mr.

Lightsey's hearing in Department 10 he went straight back to Department 4, where

he was in trial, arriving there at 10:55 a.m. (RT 5401-5403.) The excluded

evidence would have corroborated this evidence, and proved that Mr. Lightsey

simply did not have the time to commit the homicide.

Provided with this evidence, the jury might very well have decided that the

evidence left a reasonable doubt that Mr. Lightsey could have reached Mr.

Compton's house in time to accost him before he entered the shower. Put another

way, the "preclusion of this highly probative evidence went to the crux of the case,

and the harm caused by its exclusion was not cured by the receipt of other

evidence that was significantly less compelling." (DePetris v. Kuykendall, supra,

239 F.3d 1057, 1065.)

The exclusion of this evidence and the denial of counsel's request even to

argue it deprived Mr. Lightsey of a fair trial and the right to present evidence and

to defend against the charges against him. (U.S. Const., Amends. VI and XIV.)

Because the error was of constitutional dimensions, reversal is required unless the

prosecution can show that it was "harmless beyond a reasonable doubt." (Rosario

v. Kuhlman, supra, 839 F.2d 918,924 [exclusion of alibi transcript requires

analysis of prejudice under Chapman standard], citing Chapman v. California,

supra, 386 U.S. 18,24). Even under the lesser standard for state law error, there is

a "reasonable probability" that Mr. Lightsey would have obtained a more

favorable result absent the error. (People v. Linder, supra, 5 Ca1.3d 342, 348,

citing People v. Watson, supra, 46 Ca1.2d at p. 836). The verdict and sentence of

43

death must therefore be reversed.

II

44

III.

MR. LIGHTSEY'S CONVICTION MUST BE REVERSED BECAUSE THETRIAL COURT PREJUDICIALLY ERRED IN PROHIBITING THE

IMPEACHMENT OF KEY PROSECUTION WITNESS KAREN LEHMAN.


"THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AND DID

NOT VIOLATE APPELLANT'S CONSTITUTIONAL RIGHTS IN

EXCLUDING THE DRUG USE AND MISDEMEANOR CONVICTION

IMPEACHMENT EVIDENCE OF KAREN LEHMAN."

B. The Trial Court Erred In Excluding the Impeachment Evidence

As previously demonstrated (AOB 134-146), Mr. Lightsey was wrongfully

barred from impeaching the testimony of key prosecution witness Karen Lehman 11

with relevant evidence of her conviction for assault with a deadly weapon against

her ex-husband, Kern County Sheriff's Deputy Vaughn Lehman, and her past and

current drug use.

The court's barring of impeachment evidence of Lehman's prior conviction

for assaulting her ex-husband with a deadly weapon (a crime involving moral

turpitude) and her current and past drug abuse was prejudicial error. (People v.

Castro (1985) 38 Cal.3d 301,314; People v. Wheeler (1992) 4 Cal.4th 284,294,

300, fn. 14; People v. Anderson (2001) 25 Cal.4th 543, 574.) These errors in

precluding impeachment of Ms. Lehman also violated Mr. Lightsey's state and

federal constitutional rights to raise a defense, to due process of law, and to a

proportionate and reliable verdict of death. (U.S. Const., Amends. 5, 6, 8, 14; Cal.

II Karen Lehman was the sister of Brian Ray, the individual initially charged withCompton's murder after being found in possession of Mr. Compton's guns. (19RT 4070.) Lehman and Mr. Lightsey had a brief and casual sexual relationship inJune and July 2003 until Mr. Lightsey reconciled with his former girlfriend,Beverly Westervelt. (19 RT 4117,19 RT 4080-4081,19 RT 4133-4134). AfterBrian Ray's arrest, Lehman contacted Detective Boggs and alleged, in an effort toexculpate her brother, that Mr. Lightsey had given Brian Ray some guns whichwere purported to belong to Mr. Compton. (RT 19 RT 4132.)

45

Const., art. 1 §§ 7, 15, 17,28.) As the errors cannot be shown to be harmless

beyond a reasonable doubt, appellant's verdict and sentence of death must be

reversed. (Chapman v. California, (1967) 386 U.S. 18,24.)

1. The Trial Court Erred In Barring The Impeachment Of KarenLehman With Her Prior Penal Code Section 24S(A)(1) ConvictionFor Assault With A Deadly Weapon

(a)(l)) after she threw a large piece of granite at her ex-husband. Respondent

concedes, as did the district attorney prosecuting Mr. Lightsey, that assault with a

deadly weapon is a crime of moral turpitude, and that evidence that a witness has

been convicted of assault with a deadly weapon is admissible at trial. (RB 145

146; 25 RT 5317.) Yet respondent argues that the trial court properly excluded the

conviction pursuant to the balancing test of Evidence Code § 352. (RB 136, 146).

To support this argument, respondent attempts to minimize the conduct for which

Ms. Lehman was convicted to simply "throwing a rock at her ex-husband." (RB

136, 146).

The true seriousness of the conduct is illustrated by the fact that Lehman

was charged with felony assault with a deadly weapon. (25 RT 538-5319.)12 The

statute for which Ms. Lehman was convicted, rather than being the de minimis

offense claimed by respondent, is actually "an assault upon the person of another

with a deadly weapon or instrument other than a firearm or by any means offorce

likely to produce great bodily injury or by any means of force likely to produce

great bodily injury..." (Penal Code § 245(a)(l).) Lehman was not convicted of a

simple assault of throwing a little rock, but rather the use of a "deadly instrument"

that was "likely to produce great bodily injury" against her ex-husband. 13

12 Pursuant to a plea bargain, this "wobbler" offense was pled down tomisdemeanor assault with a deadly weapon, pursuant to Penal Code § 17.13 Further illustrative of Ms. Lehman's rage and 'readiness to do evil' is anotherexcluded incident in which Ms. Lehman is alleged to have used a car to attempt torun over another Kern County Sheriff's Deputy. (26 RT 5691.)

46

Lehman's prior conviction for assaulting her ex-husband with a deadly

weapon also demonstrated her "readiness to do evil" against the former men in her

life; both her ex-husband Deputy Lehman and her former lover Mr. Lightsey.

(People v. Castro, supra, 38 Ca1.3d 301,314 [noting test of admissibility of prior

conviction is whether it shows moral turpitude, i.e. a willingness to do evil].) It

was accordingly highly relevant to the credibility of her testimony against Mr.

Lightsey at trial.

The trial court abused its discretion by not properly balancing the minimal

prejudicial effect of the introduction of the conviction against its probative value

as impeachment evidence. Indeed, respondent seemingly concedes this point by

making no argument that the conviction was unusually prejudicial to Lehman or

that there was any particularized reason for its exclusion under § 352. (RB 146.)

Given that, as demonstrated supra, Lehman's conviction for assault with a deadly

weapon was highly probative, and that the prejudice of its admission was slight, its

exclusion was an abuse of discretion. (People v. Castro, supra, 38 Ca1.3d 301,

314; People v. Wheeler, supra, 4 Ca1.4th 284, 294, 300, fn. 14.)

2. The Trial Court Erred in Barring Evidence That Karen Lehman'sMemory Was Impaired and Damaged by Drug Use.

Respondent concedes that prosecution witness Karen Lehman "may have

used drugs," but argues that this fact had "no relevance" to the case. (RB 138.)

As they must, respondent further concedes that a witness's "capacity to recollect"

is admissible under the Evidence Code (RB 138), which holds that the "capacity

[of a witness] to perceive, to recollect, or to communicate any matter about which

[s]he testifies" is admissible and may be relied upon by the jury to determine the

credibility of such witness. (Evidence Code § 780(c).) Because of this well

settled statutory rule, California law permits "a witness to be impeached on cross

examination" with evidence of "drug" addiction or any other matter that affects

"his powers of perception, memory or narration." (People v. Bell (1955) 138

Cal.App.2d 7, 11-12; see also People v. Perez (1966) 239 Cal.App.2d 1, 7

47

[holding "proof of addiction alone, without further proof on how addiction affects

credibility, is permissible impeachment ..."].)

The need for such impeachment was especially crucial in Mr. Lightsey's

case, given the extensive indicators that Ms. Lehman was a classically muddled

methamphetamine abuser, with demonstrable memory impairments. Indeed, the

effects of Ms. Lehman's extensive abuse of narcotics on her ability to perceive and

remember were evidenced in her responses on cross-examination. Specifically,

Lehman could not remember the following: where she was on the date of the

murder of Mr. Compton (19 RT 4127); whether or not she was present when Mr.

Lightsey called the bail bondsman in Lancaster (19 RT 4127); when it was that

Mr. Lightsey supposedly told her he was caring for an old man (19 RT 4127);

whether or not she went back to Mr. Lightsey's residence after his arrest on the

bench warrant in July 1993 (19 RT 4128-4129); whether or not she told Detective

Boggs about ammunition she claimed she saw at Mr. Lightsey's residence (19 RT

4132); and when she started house-sitting for Mr. Lightsey. (19 RT 4133, 19 RT

4134.) This glaring memory lapses more than justified her impeachment on the

likely source of her undeniable memory problems.

While respondent is correct in asserting that this evidence of Lehman's

inability to perceive or remember was admitted at trial, the trial court prohibited

any cross-examination which would have linked such cognitive deficiencies to

Lehman's drug use. The defense intended to impeach Lehman with her past and

current drug addiction to demonstrate that her inability to remember these events

were not mere lapses of memory common to reliable witnesses but instead were

cognitive limitations attributable to long term drug abuse.

As respondent concedes (RB 147), the jury was instructed as to the

credibility of witnesses (CALJIC 2.20; VII CT 2127-2128; 28 RT 6098-6100) and

discrepancies in testimony (CALJIC 2.21.1; VII CT 2129; 28 RT 6100), with

standard jury instructions which instruct that misrecollections are common.

Rather than supporting respondent's argument, this actually highlights the need for

48

impeachment of Lehman with her rampant drug use to show that these were not

just the 'common' misrecollections of any witness. The improper exclusion of

cross-examination on Lehman's current and past drug abuse prevented the jury

from understanding that her inability to perceive and remember was more than

mere misrecollections, but was instead the result of something far more disturbing

and relevant to her credibility: memory damage from drug abuse. If they had been

informed of these facts, the jurors may very well have rejected her testimony.

Respondent argues that such evidence was nevertheless inadmissible. (RB

140, citing People v. Barnett (1998) 17 Ca1.4th 1044,536; see also People v.

(Lester) Wilson (2008) 44 Cal.4th 758.) This is incorrect. Mr. Lightsey's case is

highly distinguishable from the Wilson-Barnett line of cases. In Wilson, as in Mr.

Lightsey's case, the trial court barred cross-examination on the issue of a

prosecution witness' methamphetamine usage. However, in Wilson "neither

[party] suggested" that the prosecution's witness "was a habitual user" of

methamphetarnines, making the witness' drug use of little relevance. (Wilson,

supra, 44 Cal.4th at p. 794.) Nor were there any "suggestions in the record" in the

Wilson case that as a result of "drug use" the witness "misperceived or

misrecollected." (Ibid.)

In Mr. Lightsey's case, in contrast, the defense argued that Lehman was a

habitual drug user with memory problems, and - going further - offered to call

witnesses to prove it. (19 RT 4140.) There were also ample indications in the

record, in the form of the half a dozen or so gaps in Lehman's memory discussed

above, suggesting that Lehman's memory may have been damaged by drug use.

Mr. Lightsey'S case is therefore highly distinguishable.

Similarly, in Wilson the trial court expressly proposed that trial counsel

bring up the issue via a formal section 402 evidentiary hearing with proper expert

witness testimony on the issue of drug abuse's damage to memory. (Wilson,

supra, 44 Cal.4th at pp. 791-792.) But Wilson's counsel declined this offer,

thereby waiving the issue on appeal. Here, in contrast, the trial court expressly

49

forbade Mr. Lightsey from bringing witnesses to testify about the effects of

Lehman's drug abuse. Indeed, the court angrily threatened trial counsel for being

"out of line" in even suggesting that the cross-examination might be proper.

(AOB 137, citing 19 RT 4148,4150.) Going further, the trial court expressly

ruled that "I don't think it's proper to ask a witness the questions you have asked

this witness regarding drug usage or have you used drugs today," and left no doubt

that any future attempts to admit the evidence would be pointless. (19 RT 4148.)

(Unlike the situation in Wilson.) Given the trial court's ruling that trial counsel

was "out of line" in even trying to proffer the evidence, any further attempt to

offer additional proof in the form of lay and expert witnesses would have been

"futile." (People v. Brown (2003) 31 Cal.4th 518, 533.) There was no waiver of

the issue.

Relying on United States v. Vgeri (9th Cir. 1995) 51 F.3d 876, respondent

next argues that the trial court did not err in barring evidence that Lehman's

memory was impaired and damaged by drug use. Specifically, respondent quotes

Vgeri, supra, to argue that there is no need for an addict informer jury instruction

where "the defense adequately cross-examines the witness about the addiction."

(RB 141; citing Vgeri, supra, 51 F.3d 876, 881, emphasis added.) This authority

and argument actually supports Mr. Lightsey's claim, because in his case the

defense was wrongfully precluded from cross-examining Lehman with regard to

the effects of drug abuse on her ability to perceive and remember. Mr. Lightsey

wasn't seeking an addict instruction, as in Vgeri, he was instead seeking the right

to impeach Ms. Lehman on cross-examination - as recommended by the court in

Vgeri - with plainly relevant and admissible evidence on her memory

impairments, and their likely cause. (Evidence Code § 780(c); People v. Bell

(1955) 138 Cal.App.2d 7, 11-12.)

The trial court abused its discretion in barring impeachment on Lehman's

drug use and its affect on her ability to perceive and remember, as such evidence

was highly relevant evidence as to her ability to recall. As the error was

50

prejudicial under both the federal and state standard of review, Mr. Lightsey's

conviction and judgment of death must be reversed. (Chapman v. California

(1967) 386 U.S. 18,24; People v. Watson (1956) 46 Ca1.2d at p. 836.)

C. There Was No Waiver of the Violation of Mr. Lightsey'sConstitutional Rights.

As previously demonstrated (AOB 144-145), this erroneous limitation of

Mr. Lightsey's attempted impeachment and cross-examination of Ms. Lehman at

trial violated his federal constitutional rights to present a defense, to due process of

law, and to a reliable and proportional sentence of death. (Ibid., citing Bruton v.

United States (1968) 391 U.S. 123, 131, fn. 5; Pointer v. United States (1965) 38

U.S. 400, 405; United States v. Fajardo, supra, 787 F.2d 1523, 1527-1528.)

Respondent concedes that Mr. Lightsey repeatedly objected to the

exclusion of the impeachment evidence at trial on state law grounds, but alleges

that Mr. Lightsey waived his right to appeal the violations of his constitutional

rights as a result of the exclusion of the impeachment evidence regarding Ms.

Lehman's drug abuse. (RB 142.) As will be demonstrated, this is incorrect.

(Preliminarily, however, it should be noted that respondent apparently does not

make this waiver argument regarding constitutional violations occurring from the

exclusion of the evidence of assault with a deadly weapon.)

Assuming arguendo that Mr. Lightsey did not timely object to the

exclusion of evidence as a violation of his constitutional rights, some errors may

be raised on appeal without a timely trial court objection. (Pen Code, §1469; see

also People v. Partida (2005) 37 Cal. 4th 428.) Moreover, the fact that the right to

raise an issue on appeal may have been forfeited by failure to raise it below does

not preclude the appellate court from considering the issue and granting relief.

(See People v. Smith (2003) 31 Cal.4th 1207, 1215; People v. Johnson (2004) 119

Cal.AppAth 976, 984.)

The reasoning given for "[t]raditional objection and waiver principles" is

that they "encourage development of the record and a proper exercise of the

51

discretion in the trial court." (People v. Welch (1993) 5 Cal.4th 228, 236.)

However, not every claim of error requires an objection in the trial court to be

reviewable on appeal. "A defendant is not precluded from raising for the first time

on appeal a claim asserting the deprivation of certain fundamental, constitutional

rights." (People v. Vera (1997) 15 Cal.4th 269,276.) As Mr. Lightsey's

fundamental, constitutional rights were violated, there was no waiver. (Ibid.)

D. The Error Was Prejudicial Requiring Reversal.

Respondent incorrectly claims that there was no prejudice in excluding

impeachment of Lehman as the "evidence against Appellant was overwhelming."

(RB 144.) In fact, the defense evidence presented at trial indicated that Mr.

Lightsey had a strong alibi (he was in court at the time of the murder); there was

no forensic evidence linking Mr. Lightsey to the murder; and no witnesses placed

Mr. Lightsey at Mr. Compton's residence on the date of the murder.

Given the dearth of evidence implicating Mr. Lightsey in the death of

William Compton, the prosecution relied heavily on the testimony of informers,

including Lehman. This was conceded by the prosecution at trial, who argued in

closing that "Karen Lehman's testimony" was a "critical" piece of the

prosecution's case. (28 RT 6042.) Lehman was a key witness in placing the

firearms in Mr. Lightsey's possession after the murders (19 RT 4079,4108-4112),

and Lehman purported to link Mr. Lightsey to Mr. Compton with the alleged

comment that he was caring for an old man. (19 RT 4091-4094,4128-4129.)

Lehman also testified as to Mr. Lightsey's secretive behavior with regard to the

guns which could be interpreted as evidence of "consciousness of guilt." (19 RT

4092-4096.)

The error on barring this impeachment evidence of this "critical"

prosecution witness therefore cannot be shown to be harmless beyond a reasonable

doubt. (Chapman v. California, supra, 386 U.S. 18,24). Even under the lesser

standard for state law error, there is a reasonable probability that Mr. Lightsey

would have obtained a more favorable result absent the error. (People v. Watson,

52

supra, 46 Ca1.2d at 836.) Mr. Lightsey's conviction and sentence of death must

therefore be reversed.

II

53

IV.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR ANDPREVENTED APPELLANT FROM PRESENTING HIS THEORY OF THE

CASE, BY EXCLUDING ADMISSIBLE, RELEVANT, ANDEXCULPATORY EVIDENCE.


"THE TRIAL COURT DID NOT ABUSE ITS DISCRETION AND DID

NOT VIOLATE APPELLANT'S CONSTITUTIONAL RIGHTS IN

EXCLUDING THE HEARSAY EVIDENCE OF APPELLANT'S STATEMENT

TO BEVERLY WESTERVELT AND OUTLER DAUWALDER."

B. The Trial Court Erred in Excluding This Evidence

At trial, the primary prosecution evidence introduced against Mr. Lightsey

was his post-homicide possession of weapons belonging to Mr. Compton. Mr.

Lightsey sought to counter this with statements made to an acquaintance, Dut

Dauwalder, and to his girlfriend Beverly Westervelt that he had bought the

weapons from a third party. It was the defense theory that this third party was the

one responsible for the murder. (See AOB 147, citing 21 RT 4611,27 RT 5720

5723,28 RT 5954; 7 CT 2085.) These two statements were statements against

Mr. Lightsey's interest, as they constituted an admission of being a felon in

possession of firearms. They were also - at the time made - reliable, in that Mr.

Lightsey had no reason to make the admissions, as when they were made, he was

(a) not a suspect in the Compton homicide and (b) had no need to discuss the

weapons at all.

The trial court erred in excluding these two statements on hearsay grounds,

because their admission was mandated by Mr. Lightsey's constitutional right to

present a defense, which bars the "mechanistic" application of state hearsay rules.

(Chambers v. Mississippi (1973) 410 U.S. 284, 302; see also Green v. Georgia

(1979) 442 U.S. 95; Washington v. Texas (1967) 388 U.S. 14, 18-19; In re Martin

(1987) 44 Ca1.3d 1,29; People v. Cudjo (1993) 6 Ca1.4th 585,638 (dis. opn. of

54

Kennard, J.).) As the error cannot be shown to be harmless beyond a reasonable

doubt, appellant's verdict and sentence of death must be reversed. (Chapman v.

California, supra, 386 U.S. 18,24.)

1. Respondent's Argument

The thrust of respondent's argument is two-fold. First, respondent sets up a

'straw man' argument that the evidence was properly excluded under state law

hearsay rules as Mr. Lightsey was 'available' to testify in lieu of the hearsay

statements, and Mr. Lightsey could have corrected any error in excluding the

evidence by simply testifying directly a trial. Second, respondent argues the

evidence was too unreliable to come in even under federal constitutional 'right to

raise a defense' principles. (RB 148.) Respondent is incorrect on both points.

Notably, respondent fails to respond to Mr. Lightsey's primary argument,

that for relevance purposes, any testimonial statements at trial would be of little

value as they would be viewed by the jurors as only the self-serving testimony of

an already-charged defendant facing execution. 14 (AOB 150-152.) What gave

these statements relevance, made them reliable, and made them of crucial

importance for the defense, is that when they were made Mr. Lightsey had no need

to make the statements against his interest at all, as he was not a suspect in the

case, and did not have any other motive to manufacture a reason for possessing the

weapons, because he volunteered them at a point when neither Westervelt nor

Dauwalder were aware of the guns existence. In contrast, any testimony by him at

trial would have been of little value, or at least certainly of far less relevance and

of far less credibility. (Ibid.)

In this sense, Mr. Lightsey was "unavailable" to alternatively testify at trial,

as his trial testimony could not have served as a vehicle to replace the excluded

hearsay statements. His case is therefore distinguishable from the Elliot case cited

14 Indeed, respondent concedes this point in another context, pointing out that thejurors "rejected" Mr. Lightsey's trial testimony on these points during the penaltyphase. (RB 156.)

55

by respondent. (RB 152, citing People v. Elliott (2005) 37 Ca1.4th 453, 483.) In

Elliot, the statements at issue were made long after the defendant had become a

suspect in the charged murder and were obviously self-serving "exculpatory"

statements designed to free him from his "prosecution for first degree murder."

(Elliot, supra, 37 Ca1.4th 453,483.) Put another way, they were basically

"exculpatory" in that they were offered to explain and mitigate the already filed

charges for first degree murder, rather than true statements against penal interest.

They were therefore properly excluded as being unreliable. (Ibid.)

However, as even respondent concedes, the two statements at issue here

were made long before Mr. Lightsey became a suspect to the homicide, and before

he had any motive to create an alibi. (RB 152.)15 As respondent further argues,

one of the statements was made to Dut Dauwalder, someone who "was not a close

acquaintance of appellant," but was instead merely his "real estate broker."J6 (RB

157.) Given this lack of a close connection and the virtual impossibility of Mr.

Dauwalder ever knowing about the guns unless Mr. Lightsey informed him, these

statements were reliable as statements against Mr. Lightsey's interests as they

exposed him to prosecution for being a felon in possession of firearms, without

any need to do so.

2. The Constitutional Right to Raise a Defense Was Violated By theExclusion of the Two Statements

15 Twisting this around, respondent argues the statements were unreliable, becausethey "were not made shortly after the murder was committed." (RB 157.) But thissupports Mr. Lightsey's claim of innocence, as it helps show that he did not knowabout the murder shortly after it was committed, because he didn't commit it. If hehad, and was making the statements to manufacture an alibi, he would have madethem right away. Instead, defense evidence showed that he made the statementsonly after he bought the weapons from a third party.16 It should be noted that this is not fully correct. While the evidence introducedshowed that Mr. Dauwalder and Mr. Lightsey were not close friends, as noted byrespondent, Dauwalder was more than just Mr. Lightsey's real estate broker, hadknown him for sometime, and had even rented Mr. Lightsey a cottage to stay inwhen he was forced out of his own home.

56

More to the point, even if properly excluded under state law principles, the

barring of this evidence violated Mr. Lightsey's constitutional due process rights

to raise a defense. (U.S. Const., Amends. VI and XIV; Chambers v. Mississippi

(1973) 390 U.S. 284; Crane v. Kentucky (1986) 476 U.S. 683; Chia v. Cambria

(9th Cir. 2004) 360 F.3d 997, 1004 [reversal required where right to raise a defense

violated through exclusion of hearsay declaration under California hearsay rules];

Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, 530.)

Respondent first argues that Chia v. Cambra, which articulates the U.S.

Supreme Court's ruling in Chambers, has been overturned and is wrongly cited by

Mr. Lightsey. (RB 155, fn. 20, citing Chia v. Cambra (9th Cir. 2002) 281 F.3d

1032, 1037.) Mr. Lightsey never cited this 2002 case cited by respondent.

Instead, he cited the 2004 case of Chia v. Cambria (9th Cir. 2004) 360 F.3d 997,

1004, which has never been overturned and is final. (See AOB 152-154.)

Moreover, the federal 'right to raise a defense' principle discussed in Chia is well

settled and is not in dispute. (Tinsley v. Borg, supra, 895 F.2d 520, 530;

Chambers v. Mississippi, supra, 390 U.S. 284; Crane v. Kentucky, supra, 476 U.S.

683.)

As previously demonstrated, the statements were therefore admissible

under federal constitutional due process principles. The State may not arbitrarily

deny a defendant the ability to present testimony that is "relevant and material, and

... vital to the defense." (United States v. Valenzuela-Bernal (1982) 458 U.S.

858, 867, citing Washington v. Texas, supra, 388 U.S. at p. 16.) Accordingly, a

State may not apply a rule of evidence "mechanistically to defeat the ends of

justice." (Chambers v. Mississippi, supra, 410 U.S. at p. 302; see also Green v.

Georgia, supra, 442 U.S. 95 [exclusion of reliable hearsay mitigating evidence

violates due process]).

As noted in the Lucas case relied upon by respondent (RB 152), it is also

constitutional error to exclude "crucial evidence" introduced by a defendant.

(People v. Lucas (1995) 12 Cal.4th 415,464, citing Chambers v. Mississippi,

57

supra, 410 U.S. 284 [but finding no error as same evidence introduced through

other sources].) Here, the evidence that Mr. Lightsey had told two unrelated

people before his arrest where he had bought the stolen guns was "crucial" to his

defense and potentially fatal to the prosecution's attempt to prove him guilty.

Without them, Mr. Lightsey, even through his own testimony, could not

effectively explain his possession of the weapons that indisputably came from the

decedent in this case. Due to the wrongful exclusion, all the defense could do was

"chip[] away at the fringes" of the prosecution's theory of the case, without

providing the defense's theory of the case. (Chambers v. Mississippi, supra, 410

U.S. 284, 294.)17

Accordingly, this "crucial evidence" was clearly probative on the central

issue in the case - whether appellant committed the crime - and did not come in

through other sources. (Lucas, supra, 12 Ca1.4th 415, 464.) In addition, the jury

could have evaluated the proposed evidence, as both Ms. Westervelt and Mr.

Dauwalder were available for cross-examination as to the circumstances and

attendant reliability of the making of the two statements by Mr. Lightsey.

Moreover, the two statements were factually statements against Mr. Lightsey's

17 As previously demonstrated (AOB 159-160), Mr. Lightsey did introduceevidence at trial about the third party he had bought the weapons from, even if thecourt excluded evidence about the purchase of weapons. Specifically, the defenseintroduced evidence from multiple witnesses about an individual named "Jerry"who hung out at Mr. Lightsey's mother's neighbor John Ruby's house, andtestimony that this Ruby's house was a drug house was full of dangerous criminalswho might plausibly be linked to the murder of Mr. Compton. Evidence was alsointroduced that even the investigating officer knew about the dangerousness of thepeople at the John Ruby house, and that it was filled with dangerous transients.

Multiple witnesses also testified that Mr. Lightsey had a custom andpractice of making such second-hand purchases of guns using sums of cash hekept on hand. (RB 160.) But without the two excluded statements showing Mr.Lightsey's purchase of the guns, the jury could not have understood theconnection between Mr. Compton's weapons, and the evidence introduced by thedefense regarding the John Ruby house and its denizens, and Mr. Lightsey's habitof keeping cash on hand to make purchases from third parties.

58

interest (in that they exposed him to possible prosecution for being a felon in

possession of a firearm), and there were plainly strong, historically recognized

indicators of reliability for these statements, even though they may have not

precisely fit into California's evidentiary scheme, because such statements

necessarily bear "persuasive assurances of trustworthiness." (Chambers v.

Mississippi, supra, 410 U.S. 284, 302 [reversing murder conviction].) As the

Traylor case relied upon by respondent (RB 151) makes plain, it is a "principle of

experience" that a "statement asserting a fact distinctly against one's interest is

unlikely to be deliberately false or heedlessly incorrect, and is thus sufficiently

sanctioned, though oath and cross-examination are wanting." (People v. Traylor

(1972) 23 Cal.App.3d 323, 331 [citation omitted].)

Given all these unique circumstances, the "ends of justice" mandated the

admission of the evidence in the interests of maintaining Mr. Lightsey's right to

raise a defense. (Chambers v. Mississippi, supra, 410 U.S. at p. 302 [due process

violation to exclude hearsay evidence that "bore persuasive assurances of

trustworthiness" and fell within a recognized exception to the hearsay rule]; see

also State v. Brown (Tenn. 2000) 29 S.W.3d 427,433 [Chambers and Green v.

Georgia hold that "the constitutional right to present a defense ... trump[s] the

rule against hearsay"].)

Nor were these constitutional claims waived at trial, as claimed by

respondent. (RB 153, 157.) This violation oflaw went to the deprivation of Mr.

Lightsey's fundamental constitutional rights to a fair trial, a fair and impartial jury,

and a reliable penalty determination under the federal and state constitutions. As

such he is not precluded from raising his claim on appeal. (People v. Vera (1997)

15 Cal.4th 269, 276-277 [holding a "defendant is not precluded from raising for

the first time on appeal a claim asserting the deprivation of certain fundamental,

constitutional rights."]; see also People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6;

People v. Partida (2005) 37 Cal.4th 428,433-439.)

C. The Error Was Prejudicial

59

Respondent concedes that the federal "harmless beyond a reasonable

doubt" standard governs this issue. (RB 156, citing Chapman v. California, supra,

386 U.S. at p. 24.) Respondent argues that any error was harmless, because

"appellant testified during the penalty phase that he purchased the victim's guns

out of the trunk of a car across the street from his mother's house," as also noted in

the two excluded Dauwalder and Westervelt statements, but the "jury rejected

appellant's testimony and sentenced him to death." (RB 156.) Yet as discussed

supra, this rejection by the jury of Mr. Lightsey's testimony at trial actually

supports his argument that the exclusion of the two pre-trial statements was

prejudicial, as the excluded pre-arrest statements had a persuasive power that

could not be duplicated by the trial testimony of Mr. Lightsey alone.

But for the exclusion of the evidence of Mr. Lightsey's statements, the jury

might have had a reasonable doubt as to his guilt and found him not guilty. Apart

from Mr. Lightsey's possession of Mr. Compton's weapons, the prosecution's

case that Mr. Lightsey was Compton's killer was extremely weak. The district

attorney was trying to pin Compton's murder on a defendant who had indisputably

been in court for most of the morning on which the killing had occurred. The

prosecution was reduced to arguing that Mr. Lightsey had rushed from court to his

mother's house, and then to Mr. Compton's house in time to accost him before 11

in the morning, stab him forty-three times, find over twenty guns, video cameras,

and other small items and load them into his car, and drive to his own home in

time to make a telephone call to a bail bondsman at 11 :50. Evidence that Mr.

Lightsey had told friends before his arrest where he had bought the stolen guns

was potentially fatal to the prosecution's attempt to prove him guilty.

The trial court's violation of appellant's due process right to present a

defense, and his Fifth, Eighth and Fourteenth Amendment rights to a fair and

reliable trial on both guilt and punishment, requires this Court to reverse both the

guilt and penalty verdicts unless the violation "was harmless beyond a reasonable

doubt." (Chapman v. California, supra, 386 U.S. 18,24; In re Ruzicka (1991) 230

60

Cal.App.3d 595, 601.) Given the importance of the improperly excluded evidence

to the basic theory of the defense, it cannot be reasonably concluded that the

verdicts in this case were "surely unattributable to the error." (Sullivan v.

Louisiana (1993) 508 U.S. 275,279.) Mr. Lightsey's conviction and sentence of

death must therefore be reversed.

II

61

V.

MR. LIGHTSEY'S CONVICTION MUST BE REVERSED BECAUSE THEPROSECUTOR VIOLATED THE TRIAL COURT'S ORDER NOT TOMENTION MR. LIGHTSEY'S STATUS AS A PRISONER, THEREBY

CAUSING MATERIAL PREJUDICE TO MR. LIGHTSEY BEFORE THETRIER OF FACT.

"NO PROSECUTORIAL MISCONDUCT OCCURRED; THE TRIAL

COURT DID NOT ABUSE ITS DISCRETION AND DID NOT VIOLATE

APPELLANT'S RIGHTS IN DENYING APPELLANT'S MOTION FOR

MISTRIAL."

B. The Trial Court Erred in Failing to Grant a Mistrial as Requested byDefense Counsel.

The trial court granted a defense motion in limine to bar the prosecutor

from mentioning that Mr. Lightsey was incarcerated in State Prison. (1 RT 108; 7

CT 1881.) The court's ruling specified that the parties could mention that Mr.

Lightsey was in "custody," but not that he was in prison. (1 RT 108; 7 CT 1881).

On two separate occasions, the prosecutor defied the court's ruling and elicited

testimony from two separate witnesses that Mr. Lightsey was housed at "Wasco" a

well-known California State Prison, and that he was housed within a "protective

housing unit" for "high profile" defendants within the prison. (20 RT 4491; 21 RT

5182). Notwithstanding the prosecutor's prejudicial violations of the trial court's

order, the trial court denied two motions for mistrial based upon the acts of

misconduct. (20 RT 4497,4518).

The prosecutor's misconduct and the trial court's failure to provide an

effective remedy violated Mr. Lightsey's state and federal constitutional rights to

raise a defense, to due process of law, and to a proportionate and reliable verdict

of death. (U.S. Const., Amends. 5, 6, 8, and 14; Cal.Const., art. 1, §§ 7, 15, 17,

and 28; Darden v. Wainwright (1986) 477 U.S. 168, 181-182.) The error also

breached his federal constitutional due process liberty interest under the state

62

prosecutorial misconduct rules. (Hicks v. Oklahoma, supra, 447 U.S. 343,346.)

As the errors cannot be shown to be harmless beyond a reasonable doubt,

appellant's verdict and sentence of death must be reversed. (Chapman v.

California (1967) 386 U.S. 18,24.)

1. Respondent's Concessions

Respondent concedes that trial counsel specifically moved for a mistrial

based on allegations that the prosecutor used the deceptive tactic of "[implying]

that Mr. Lightsey had a felony conviction," through her questions to Westerveldt,

in an attempt to "impeach[] Mr. Lightsey without him having to take the stand,"

notwithstanding the trial court's clear order not to elicit such evidence. (RB 160,

citing 21 RT 4518-4519.) Yet respondent nevertheless claims that the

prosecutor's actions were perfect!y appropriate. (RB 160-166.)

This is incorrect.

It is well-settled that the "State may not show defendant's prior trouble with

the law, specific criminal acts, or ill name among his neighbors,.even though such

facts might logically be persuasive that he is by propensity a probable perpetrator

of the crime." (Michelson v. United States (1948) 335 U.S. 469,475). In People v.

Robinson (1995) 31 Cal.AppAth 494,504-505, the court of appeal held that the

prosecutor's elicitation of testimony from a prosecution witness about defendant's

"felony conviction" and that he was "in custody" was in violation of the trial

court's order, was prejudicial, and required reversal of defendant's convictions.

(See also People v. Bouzas (1991) 53 Ca1.3d 467, 480-81 [holding reversible error

to allow the prosecutor to present evidence of a defendant's prior conviction].)

Respondent's argument that Mr. Lightsey's statutory and constitutional rights

were not violated as a result of the prosecutor's misconduct is therefore incorrect.

2. There Was No Waiver

Respondent next questions whether filing a motion for mistrial preserved

Mr. Lightsey's claim of prosecutoria1misconduct. (RB 163.) Yet trial counsel

twice requested a mistrial following the acts of misconduct by the prosecutor in

63

admitting previously excluded evidence. (20 RT 4497,4518.) These motions fully

preserved his claims on appeal. (See People v. Hardy (1992) 2 Cal.4th 86, 157

[holding that a timely motion for mistrial out of the presence of the jury preserves

the issue for appeal].)

3. The Prosecutor Committed Misconduct

Respondent next argues that the trial court properly ruled that there was no

misconduct in eliciting testimony that Mr. Lightsey was incarcerated in "Wasco,"

i.e. Wasco State Prison, because there's a "lot of things in Wasco. There's a lot of

places in Wasco." (RB 164, citing 21 RT 4497.) This argument was disingenuous

to say the least. "Wasco" is well-known to residents of the Central Valley. (See,

e.g., Kruse v. Superior Court (2008) 162 Cal.AppAth 1364, 1368 [even 5th District

court of appeal refers to Wasco State Prison merely as "Wasco"].) There is

certainly no other facility in Wasco where people are kept in custody other than

Wasco State Prison, the context in which the "Wasco" statements were made. It is

therefore highly likely that residents of Kern County, including Mr. Lightsey's

jurors, understand that the county jail in Bakersfield houses the pretrial detainees

while the only custodial facility in Wasco is a State Prison for convicted felons.

By eliciting testimony from multiple witnesses that Mr. Lightsey was incarcerated

at Wasco, the jurors were therefore informed that he was a convicted felon,

something of which they were not previously aware.

Respondent next argues that there was no harm in eliciting testimony that

Mr. Lightsey was housed in a prison Secured Housing Unit with testifying

informant Robert Rowland. (RB 166.) Specifically, respondent argues that this

Court has previously held that "in certain circumstances a jury will inevitably

learn that a defendant is in custody for the current charged offense, for example

where the jury is presented with the testimony of a jailhouse informant." (RB 166,

citing People v. Bradford (1997) 15 Cal.4th 1229, 1336.) However, this assertion

actually bolsters appellant's argument.

As noted in Bradford, the issue of being in pre-trial custody is not the key

64

issue: it is often the case the jurors that jurors become aware a capital murder

defendant is in pretrial custody. (Ibid.) Rather, the issue the issue is the difference

between pre-trial custody, which does not imply a felony conviction, and custody

in state prisons, which necessarily include a prior felony conviction. Here, the

comments elicited by the prosecutor were improper in that the jurors not only

learned that Mr. Lightsey was in custody on the current offense, but that he was in

a state prison on a previous felony conviction. Mr. Lightsey's case is therefore

highly distinguishable from Bradford, and the prosecutor's deceptive misconduct

in eliciting Mr. Lightsey's felon status therefore constituted an "egregious"

violation of Mr. Lightsey's right to due process. (People v. Gionis (1995) 9 Ca1.4th

1196, 1214.)

Respondent alternatively relies on the fact that the trial court partially based

its denial of the mistrial motion on the grounds that defense counsel Dougherty

later brought out the fact that Rowland had spent many years in and out of prison.

(28 RT 6105-6106.) Yet the fact that Rowland had previously been in prison, as

brought out by defense counsel during his impeachment of Rowland with his

priors and membership in the Aryan Brotherhood, did not indicate that he was in

prison when he was later with Mr. Lightsey. Quite the contrary, their time

together could have just as easily have been while both in pre-trial custody, rather

than in prison on a felony conviction. Indeed, that was the whole point of the trial

court's ruling to allow testimony that Mr. Lightsey was in custody, but not that he

was a felon in prison.

C. The Error Was Prejudicial, Requiring Reversal

By disregarding the court's order and disclosing extremely prejudicial

information about Mr. Lightsey's custody and prison status, the prosecution also

violated Mr. Lightsey's rights to a fundamentally fair trial with due process of law,

and a reliable and proportional verdict of death. (California v. Brown (1987) 479

U.S. 538, 543; Gardner v. Florida (1977) 430 U.S. 349, 357-358; Woodson v.

North Carolina (1976) 428 U.S. 280, 305.) The admission of this highly

65

prejudicial evidence violated Mr. Lightsey's state and federal constitutional rights

to raise a defense, to due process of law, and to a proportionate and reliable verdict

of death. (U.S. Const., Amends. 5, 6,8, and 14; Cal. Const., art. 1, §§ 7, 15, 17 and

28.)

Given the severity of the prejudice of branding Mr. Lightsey as a felon, and

the strength of the defense's case, the error cannot be shown to be harmless

beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18,24). Even

under the lesser standard for state law error, there is a "reasonable probability" that

Mr. Lightsey would have obtained a more favorable result absent the error.

(People v. Watson, supra, 46 Cal.2d at p. 836). Mr. Lightsey's verdict and

sentence of death must accordingly be reversed.

II

66

VI.

THE TRIAL COURT PREJUDICALLY ERRED IN FAILING TOPROPERLY INSTRUCT THE JURY REGARDING MR. LIGHTSEY'S

ALIBI DEFENSE.

A. Respondent's Assertions

"THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE

JURY WITH APPELLANT'S ALIBI INSTRUCTION."

B. The Trial Court Erred in Failing to Instruct the Jury With theRequested Instruction

Mr. Lightsey had an unusually strong alibi for the charged murder based

upon the "physical impossibility" of his "guilt" as he was at a location other than

the scene of the crime [the Kern County Superior Court] at the relevant time."

(Noble v. Kelly (2nd Cir. 2001) 246 F.3d 93, 98, citing Black's Law Dictionary, 72

(7th ed. 1999).) However, the trial court effectively gutted Mr. Lightsey's alibi

defense when it refused to fully instruct the jury on the law with regard to Mr.

Lightsey's alibi. (28 RT 6073.) Specifically, the trial court refused to give a

pinpoint instruction articulating that the defense did not have to prove its alibi by

either a preponderance of the evidence standard or a beyond a reasonable doubt

standard. (28 RT 6072-6073.) As was previously demonstrated (AOB 167-172),

the instruction rejected by the trial court would have clarified the standard alibi

instruction (CALJIC 4.50) by more completely instructing the jury that the

prosecution bears the ultimate burden of persuasion. (See People v. Adrian (1982)

135 Cal.App.3d 335,337.)

1. Respondent's Concessions

Respondent concedes that the requested instruction was an accurate

statement of the law. (RB 170, citing People v. Lee Sare Bo (1887) 72 Cal. 623

and People v. Mar Gin Suie (1909) 11 Cal.App. 42.) However, respondent fails to

respond to Mr. Lightsey's argument that the instruction was necessary under the

unique circumstances of the case.

67

As previously demonstrated, the clarification of the standard jury

instruction was made particularly necessary by Mr. Lightsey's mental

incompetency, which led him to challenge the accuracy of his own alibi being

proffered by defense counsel. (See AOB 131, fn. 42.) In repeated outbursts from

the defendant's chair during the guilt phase, Mr. Lightsey insisted on denying that

his alibi defense was true, instead claiming that he had not been in the court

proceedings as claimed in his guilt phase defense, but had instead been in a

different court all day.

These unique circumstances muddied the evidentiary picture of Mr.

Lightsey's otherwise unusually strong alibi to the charged murder, and the

supplementary instruction was therefore needed to clarify the burden of proof as to

his alibi. Specifically, evidence was introduced by the defense that Mr. Lightsey

was in court on another case and on the record during the same morning the

homicide occurred in the case at bar. The evidence presented at trial indicated that

the murder at issue in this case occurred prior to 10:45 a.m. At the time of the

murder, the evidence introduced by the defense showed that Mr. Lightsey was

either with his attorney at the Kern County Superior Court or walking with his

mother out of the courthouse. (Even the prosecution conceded that Mr. Lightsey

was until court until at or just before 10:30, but argued he rushed to the decedent's

home -- using the remaining the extra minutes available by not leaving at 11 :00

a.m. [as shown by the defense evidence] -- to kill the decedent, ransack his home,

steal his dozens of guns, and rush back home in time to make a phone call at

11 :50.)

The proposed special jury instruction was appropriate because it clarified

the burden on the prosecution as it related to Mr. Lightsey'S alibi defense. While

the alibi instruction given by the court (CALJIC 4.50) notes that a defendant can

assert an alibi defense where he "has introduced evidence for the purpose" of

proving such an alibi, it is silent as to whether the defense has any burden of proof

when "introducing" such evidence. (See CALJIC 4.50.) Instead, CALJIC 4.50

68

only generally instructs that a defendant must only raise a reasonable doubt as to

his guilt when presenting an alibi defense.

But, at least under the unique circumstances of Mr. Lightsey's case,

CALJIC 4.50 is confusing as to what standard, if any, applies to the burden of

proof on a defendant in proffering evidence of an alibi, given Mr. Lightsey's

confusing outbursts in this regard. The proposed defense instruction would

accordingly have served to '''pinpoint' the crux" of Mr. Lightsey's "alibi" defense,

and more completely instructed the jury that the prosecution bears the ultimate

burden of persuasion with regard to the alibi (People v. Adrian (1982) 135

Cal.App.3d 335, 337), even under the unique circumstances of Mr. Lightsey's

case. The trial court therefore erred in refusing the instruction.


Respondent alternatively argues that the failure to instruct was harmless,

making the startling claim that Mr. Lightsey's alibi defense was "weak." (RB

173.) This is incorrect. The evidence presented at trial presented a strong alibi for

Mr. Lightsey, in the form of transcripts and multiple witnesses showing that at the

time of the murders he was in the Kern County Superior Court, and not at the

residence of the victim. Except for a few key moments, the evidence of this alibi

was essentially undisputed: that Mr. Compton had been seen alive at 7:45 a.m. on

July 7, 1993 and had missed an 11:30 medical appointment that day about fifteen

minutes' drive from his house; that Mr. Lightsey was with his attorney or in the

courthouse from about 8 a.m. until at least 10:35 a.m.; and that Mr. Lightsey made

a long-distance telephone call from his home at around 11 :50 a.m. Even the

prosecution evidence tended to show that Mr. Compton was probably killed well

before Mr. Lightsey left the courthouse. Evidence was presented that Mr.

Compton had failed to answer telephone calls from about 8:00 in the morning on,

and that his body, when examined by paramedics shortly after 2:00 that afternoon,

was in full rigor mortis. (15 RT 3340,3400,3403,3411-3412,3428.)

Additional evidence was presented that Mr. Compton usually arrived at his

69

medical appointments about fifteen minutes early and that he was preparing to

take a shower just before he was killed -- evidence which implied that he had been

assaulted some time before 10:45 that morning. (16 RT 3662-3664.) The

prosecution further conceded that the murderer must have completed the crime

and left with Mr. Compton's home with his 17 guns by "11:30" a.m., because a

neighbor named came back home at 11:30 and hadn't seen Mr. Lightsey or his car

or any other suspicious activity at Compton's home. (28 RT 5926.) The only

defense evidence that was disputed was whether Mr. Lightsey was in court until

closer to 11 :00, rather than 10:30, and had spent perhaps fifteen minutes after that

walking with his mother to her car and driving back to her house where his car

was parked, making it physically impossible to commit the murder. In sum, the

record contained strong evidence in support of Mr. Lightsey's alibi. However, this

evidence may have been rejected by the jury due to the confusing burden of proof

as to the alibi, especially given Mr. Lightsey's outbursts. (28 RT 6144, 6198; see

also AOB 100-102, 131, fn. 42.)

Because the refusal of the requested pinpoint instruction unconstitutionally

deprived Mr. Lightsey of his constitutional right to due process and to raise a

defense, reversal is required because the error cannot be shown to be "harmless

beyond a reasonable doubt." (Rosario v. Kuhlman (2nd Cir. 1988) 839 F.2d 918,

924 [exclusion of alibi transcript requires analysis of prejudice under Chapman

standard], citing Chapman v. California, supra, 386 U.S. 18,24). Even under the

lesser standard for state law error, there is a "reasonable probability" that Mr.

Lightsey would have obtained a more favorable result absent the error. (People v.

Linder, supra, 5 Ca1.3d 342, 348, citing People v. Watson, supra, 46 Ca1.2d at p.

836). Mr. Lightsey's verdict and sentence of death must therefore be reversed.

II

70

VII.

MR. LIGHTSEY'S CONVICTION MUST BE REVERSED BECAUSE THETRIAL COURT PREJUDICALLY ERRED IN FAILING TO INSTRUCTTHE JURORS TO DISREGARD THE FACT THAT HE WAS VISIBLY

SHACKLED THROUGHOUT HIS GUILT PHASE PROCEEDINGS.


"THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY

SUA SPONTE TO DISREGARD APPELLANT'S SHACKLES BECAUSE THE

SHACKLES WERE NOT VISIBLE TO THE JURY." (RB 175.)

B. The Shackles Were Visible to the Jury During Trial RequiringInstruction Pursuant to CALJIC 1.04.

The record is clear that Mr. Lightsey was visibly shackled, with up to three

deputy sheriffs standing behind him at the counsel table, throughout his trial, and

the trial court therefore prejudicially erred in failing to sua sponte give the jurors

an instruction, such as CALJlC 1.04, not to consider Mr. Lightsey's shackles

during their deliberations. (People v. Duran (1976) 16 Cal.3d 282, 291-92; People

v. McDaniel (2008) 159 Cal.App. 736, 743 [accord].) This error violated Mr.

Lightsey's federal constitutional rights to a fair trial with due process of law, and

to a proportionate and reliable verdict of death. (U.S. Const., Amends. 5, 6, 8, and

14; Cal. Const., art. 1, §§ 7, 15, 17 and 28.) It also breached his federal

constitutional state law "liberty interest" under California law to receive proper

jury instructions. (U.S. Const., Amends. 5, 14; Hicks v. Oklahoma (1980) 447 U.S.

343, 346.) As the error in failing to instruct was prejudicial, Mr. Lightsey's

conviction must be reversed. (People v. Duran, supra, 16 Cal.3d 282.)

1. Concessions by respondent

Respondent apparently concedes that Mr. Lightsey's shackles may have

been visible during "pretrial proceedings," noting some of the citations made by

Mr. Lightsey in his AOB relate to pretrial proceedings, but argues they were not

visible in the presence of the jury itself. (RB 179). This apparent concession was

necessary but insufficient: the evidence adduced during the pretrial proceedings is

71

plain that Mr. Lightsey's shackles were obvious and visible. Mr. Lightsey was

"shackled to a bolt in the floor." (6 RT 1166-1167.) Mr. Lightsey was "hand

cuffed" and had waist "shackles" bolted to the floor. (4/7/94 RT 13 [discussing

scope of shackling]; 3/23/95 RT 116-118 [linking of cuffs to shackles prevented

Mr. Lightsey from being able to get into his notebook, write notes to his attorney];

8/2/94 RT 215 [linking of cuffs to shackles kept Mr. Lightsey from picking up

pleadings to examine]; 4/5/95 RT 347 [linking of cuffs to shackles stopped Mr.

Lightsey from handling photos; 3/23/95 RT 115].) The system of shackles and

cuffs was sufficiently bulky that they made "noise" so loud that it was

"interrupting the Court with" Mr. Lightsey'S "chains." (l RT 116.) As the Court

noted when discussing options for Mr. Lightsey's crime scene view, whenever Mr.

Lightsey moved he was literally "dragging chains." (3 RT 640-641.)

During trial, this visible shackling was only adjusted in one respect. Mr.

Lightsey's arms were freed by unlinking his handcuffs from his waist shackles,

but in all other respects he remained shackled to a bolt in the floor and maintained

his handcuffs, waist shackles and leg shackles. (4/13/95 RT 540-541.) Mr.

Lightsey's shackles, visible during pre-trial proceedings, were also visible and

audible during trial proceedings before the jury, as evidenced by references at

various points to the fact that the Mr. Lightsey'S waist chains would be visible if

he stood up in the courtroom (l RT 102-103); instances in which Mr. Lightsey did

stand up when the jurors entered the courtroom (l RT 189; 2 RT 348; 20 RT

4279-4280 [unable to stand up in courtroom]; 14 RT 3161 [same];) and comments

by counsel and court personnel on the presence of the chains. (1 RT 102-103

[discussion of "muffling" sound of "other" chains with duct tape]; 4/13/95 RT

540-541 [Lightsey in waist chain].)

Respondent further concedes in another context that neither the prosecutor

nor the court disputed trial counsel's argument that Mr. Lightsey was visibly

shackled in the presence of the jury. As respondents themselves noted in their

brief, the trial prosecutor did not contest trial counsel's comments that Mr.

72

Lightsey was visibly "shackled to a bolt in the floor. That takes care of the fact

[for the jury] that he is in custody of the Department of Corrections." (RB 178,

citing 6 RT 1177.) (Trial counsel's comment on Mr. Lightsey's shackles came in

response to the prosecutor's objection to Mr. Lightsey, as a "convicted inmate of

the State Department of Corrections," from greeting prospective jurors.) (6 RT

1165.) Neither the court nor the prosecutor suggested that Mr. Lightsey's shackles

were not visible to the jury in response to this assertion. Where "neither the trial

court nor the prosecutor disputed [an appellant's] statement" at trial that his

shackles were visible, the appellate court may properly infer that such an appellant

was visibly shackled. (People v. Soukomlane (2008) 162 Cal.App.4th 214, 230

[reversing conviction due to prejudice of visible shackling].) In addition, it was

undisputed that up to three sheriff's deputies were routinely stationed behind Mr.

Lightsey as he sat at the counsel table. (4/13/95 RT 540; 17RT 3087).18

California law is clear that when physical "visible restraints" are imposed,

the "court shall instruct the jury sua sponte that such restraints shall have no

bearing on the determination of the defendant's guilt." (People v. Duran, supra, 16

Cal.3d 282,291-292; People v. Mar (2002) 28 Cal.4th 1201, 1217 ; see also

People v. George (1994) 30 Cal.App.4th 262, 272-73; People v. Thompkins (1987)

195 Cal.App.3d 244,255; People v. Jackson, supra, 14 Cal.App.4th 1818, 1825-26

[accord; CALJIC 1.04 [same].) The trial court erred in failing to give such an

instruction.

2. There was no waiver

Respondent next claims that Mr. Lightsey "forfeited his right" to raise the

claim of instructional error, specifically the federal constitutional claims, as there

was no objection to the court's failure to instruct at trial. (RB 180.) This assertion

18 All these obvious restraints were imposed in spite of the fact that even the jaildeputy who testified in favor of shackling Mr. Lightsey admitted that he was notviolent, but just "unruly" and a "confrontational big mouth." (4/13/95 RT 520521.)

73

is incorrect, because "the appellate court may [] review any instruction given,

refused, or modified, even though no objection was made thereto in the lower

court, if the substantial rights of the defendant were affected thereby." (Cal. Penal

Code § 1259; see also People v. Vera (1997) 15 Ca1.4th 269, 276-277 [holding a

"defendant is not precluded from raising for the first time on appeal a claim

asserting the deprivation of certain fundamental, constitutional rights."]; People v.

Flood (1998) 18 Ca1.4th 470,482 fn.7 [holding that defendant's failure to object to

an instruction does not preclude appellate review for constitutional error.]; People

v. Graham (1969) 71 Ca1.2d 303,317-319.) Accordingly, it is well-settled that a

defendant's right to raise a claim that the trial court failed to instruct the jury sua

sponte is not forfeited for failure to make a timely objection. (See People v. Avila

(2006) 38 Cal.4th 527 fn. 22.)

Here, the record was plain that Mr. Lightsey was in fact shackled

throughout the pretrial and trial proceedings and that such shackles were visible

and audible to the jury who was sitting in judgment over Mr. Lightsey. The

failure of the trial court to instruct the jury to disregard the shackles when making

a determination as to Mr. Lightsey's guilt "deprived [Mr. Lightsey] due process of

law under the Fourteenth Amendment to the United States Constitution" and

denied Mr. Lightsey a "fair and impartial jury." (People v. Jacla (1978) 77

Cal.App.3d 878,888; People v. Givan (1992) 4 Cal.AppAth 1107, 1117, citing

U.S. Const. Amend. VI; Cal Const., art. I, § 16.)


This Court has previously articulated "that it is manifest that the shackling

of a criminal defendant will prejudice him in the minds of the jurors. When a

defendant is charged with any crime, and particularly if he is accused of a violent

crime, his appearance before the jury in shackles is likely to lead the jurors to infer

that he is a violent person disposed to commit crimes of the type alleged." (People

v. Duran (1976) 16 Ca1.3d 282,290.) More recently the courts of appeal have

stressed that the jurors' perceptions of a defendant's credibility are "vulnerable to

74

the impact of seeing [a defendant] in shackles." (People v. Soukomlane, supra,

162 Cal.AppAth 214, 232-33.)

Even where the jurors are already made aware that a defendant is a "prison

inmate," as occurred in Mr. Lightsey's case, a shackled defendant is still

prejudiced as a result of the "jurors' visual, psychological, and emotional response

to seeing a defendant so physically restrained and differentiated from everyone

else and the natural tendency to wonder whether the defendant is a violent and

dangerous person and worry about safety." (People v. McDaniel, supra, 159

Cal.AppAth 736, 746.) Even the former Saddam Hussein regime in Iraq, hardly

known as a paragon of due process, had a per ser bar against a defendant ever

appearing at trial in "restraints or handcuffs," much less shackles, due to the well

known prejudice of such shackling. (Iraqi Criminal Procedure Code, Section 156

[Law 23 of 1971].)

Given this inherent and grave prejudice of Mr. Lightsey's visible shackling,

the trial court's error in failing to admonish the jury cannot be shown to be

harmless beyond a reasonable doubt. (People v. facla, supra, 77 Cal.App.3d 878,

891, citing Chapman v. California, supra, 386 U.S. 18,24; People v. Duran,

supra, 16 Cal.3d 282, 296, fn. 15 [same].) But for the trial court's error, the jurors

might have found Mr. Lightsey not guilty. Accordingly, Mr. Lightsey's conviction

and sentence of death must be reversed.

II

75

VIII.

THE TRIAL COURT'S RULINGS LIMITING THE SCOPE OF THEDEFENSE MENTAL HEALTH EXPERT'S TESTIMONY DURING THEPENALTY PHASE VIOLATED MR. LIGHTSEY'S RIGHTS UNDER THE

FEDERAL AND STATE CONSTITUTIONS AND REQUIRE THEREVERSAL OF HIS JUDGMENT OF DEATH


"THE TRIAL COURT DID NOT RESTRICT THE DEFENSE COUNSEL'S

EXAMINATION OF PSYCHOLOGIST WILLIAM PIERCE." (RB 182.)

B. Relevant Proceedings

1. Testimony From Mr. Lightsey About The Court-OrderedPsychiatric Examinations And His Father

During defense counsel's direct examination, counsel asked Mr. Lightsey

whether he had served as his own attorney, and Mr. Lightsey replied that he "was

forced [into] pro per status." (30 RT 6395.) The prosecutor objected, and the trial

court questioned the relevance of counsel's inquiry. (30 RT 6395.) Mr.

Dougherty explained that he planned to segue from Mr. Lightsey self

representation to "the psychiatric reports as a matter of mitigation." (30 RT 6395.)

19 The trial court ruled that Mr. Lightsey could only answer "yes or no" to the

question about whether he had represented himself. (30 RT 6395.)

After additional questions, Mr. Lightsey testified that he was represented by

Attorney Stanley Simrin who asked to be relieved in February 1994. (30 RT

6396-6400.) After Simrin was relieved and Mr. Lightsey asked to represent

himself, the court instituted competency proceedings pursuant to Penal Code

19 The trial court appointed three psychiatrists in 1994 to examine Mr. Lightseyand determine if was competent to waive his right to counsel and representhimself. Each of these psychiatrists prepared reports documenting theirexaminations, and all three testified for the prosecution at Mr. Lightsey'scompetency hearing in August 1994. (RT 8-2-1994, 14-143.)

76

section 1368. (30 RT 6400-6401.) The prosecutor objected that any testimony

about the Section 1368 proceedings was irrelevant, the trial court sustained the

objection, and it ruled there was to be no more mention of these proceedings. (30

RT 6401.)

Defense counsel, Mr. Dougherty, agreed, and asked Mr. Lightsey if he was

examined by court-appointed psychiatrists before being allowed to represent

himself. (30 RT 6401.) After the court commented that the question "ties into the

psychiatric evaluation," the prosecutor asked to discuss this topic outside of the

jury's presence, and the court excused the jury. (30 RT 6402, 6403.)

During the ensuing hearing, the prosecutor argued that although the defense

had wide latitude to introduce evidence in mitigation of punishment, the Section

1368 proceedings and the related psychiatric examinations were irrelevant to the

jury's penalty determination and hence inadmissible. (30 RT 6403-6405.) After

the prosecutor's argument, the court asked Mr. Dougherty to explain why the

psychiatric reports prepared pursuant to Section 1368 were relevant to the jury's

penalty determination. (30 RT 6406.) According to counsel, these reports were

relevant to the jury's penalty determination pursuant to CALJIC No. 8.85(d) - in

deciding penalty, the jury can consider whether the offense was committed while

the defendant was under the influence of extreme mental or emotional disturbance.

(30 RT 6407.) Defense counsel further explained that all the doctors' "analysis

and reports" should be considered in determining the penalty, and he planned to

"lay the foundation through the witness [Mr. Lightsey] and then take that matter

through Dr. Pierce when he testifies." (30 RT 6407.) When the court replied that

it did not see the relevance of the 1994 psychiatric reports to whether Mr. Lightsey

suffered from "extreme mental or emotional disturbance at the time of the offense

[in 1993]," counsel explained that one of the doctors concluded in his report that

Mr. Lightsey "had a psychotic deficiency." (30 RT 6407.)

Mr. Dougherty said he did not intend to call that doctor as a witness or

introduce his conclusion about Mr. Lightsey during the penalty phase. (30 RT

77

6408.) Instead, counsel wanted to establish through Mr. Lightsey's testimony that

he was examined by three different psychiatrists at the court's request, and then

elicit testimony from Dr. Pierce that one of the doctor's concluded that Mr.

Lightsey "had bipolar disorder manic type." (30 RT 6408.)

Based on the decision in People v. Nicolaus (1991) 54 Ca1.3d 551, the

prosecutor argued that the doctors' conclusions about Mr. Lightsey would be

inadmissible hearsay and Dr. Pierce's testimony should be limited to testifying

that he reviewed the reports in arriving at his own opinion about Mr. Lightsey.

(30 RT 6408-6409.) Mr. Dougherty said he did not plan to elicit testimony from

Dr. Pierce about the contents of the psychiatrists' reports, but only wanted to

establish whether Dr. Pierce reviewed the reports as part of the material he

considered in arriving at his opinion about Mr. Lightsey. (30 RT 6410.)

According to counsel, Dr. Pierce was entitled to testify about the bases for his

opinion and he wanted to establish through Mr. Lightsey's testimony that he was

examined by three separate psychiatrists about

"whether or not at the time of the offense the capacity of thedefendant to appreciate the criminality of his conduct or to conformto his conduct to the requirements of the law was impaired as a resultof mental disease or defect or the effects of intoxication."

(30 RT 6410-6411.)

In response, the trial court ruled as follows:

"I don't have any problem with your making an inquiry as towhether or not he was evaluated by those doctors. And if at somepoint in time you're going to call Dr. Pierce to come in here andtestify that, amongst other things, in addition to his education, inaddition to his experience, he's going to rely upon the reference tothe reports previously made by Dr. Velosa, Dr. Burdick and Dr.Manohara and stops at that, I don't have any particular problem withthat and I don't think the People do.

"Am I correct, Mrs. Green [the prosecutor]?

78

"MS. GREEN: Yes, your Honor.

"THE COURT: So that's the way we're going to play the game, bythose strict rules."

(30 RT 6413.)

When counsel questioned Mr. Lightsey about his examination by Dr.

Burdick [one of the three psychiatrists who examined him], Mr. Lightsey testified

that he did not recall talking with Dr. Burdick beyond "trying to tell him that-"

(30 RT 6417.) The court interrupted by saying "I'm not going to allow you to get

in the substance of that interview." (30 RT 6417.) When counsel asked if Mr.

Lightsey gave the doctor the opportunity to interview him, and Mr. Lightsey

answered "Not really. I simply told him -" (30 RT 6418.) The court again

interrupted by ruling that the question could only be answered "Yes or no." (30

RT 6418.) Mr. Lightsey answered "No," and counsel asked "Why?" (30 RT

6418.) Mr. Lightsey answered that the Section 1368 proceedings were illegal and

instituted for purposes of facilitating the fraudulent transcripts of the preliminary

examination, and the court directed counsel to ask a different question. (30 RT

6418.)

Mr. Dougherty turned to questioning Mr. Lightsey about his interview with

Dr. Manohara [another of the three psychiatrists who examined Mr. Lightsey].

(30 RT 6418-6419.) Mr. Lightsey testified that Dr. Manohara interviewed him for

about 45 minutes, they mostly discussed "eastern religion" during the interview,

and Mr. Lightsey tried to be cooperative but the doctor twisted his words and used

"flowery sociology words." (30 RT 6420.) Because the court believed Mr.

Lightsey's answer exceeded the scope of counsel's questioning, it directed

counsel to askhis next question. (30 RT 6419-6420.)

Counsel then asked if Mr. Lightsey remembered talking with Dr. Velosa at

the Tulare County jail on two occasions in July 1994. (30 RT 6420.) Mr.

Lightsey said he did not remember, but added that the doctor "Didn't even type his

report right. That's why I made that comment. Yes, that's the psychologist." (30

79

RT 6420.) Mr. Lightsey agreed he was examined by Dr. Velosa pursuant to the

court's order for a psychiatric examination, and the court ruled several times that

Mr. Lightsey's answers went beyond the questions asked and it struck one of those

answers as exceeding the allowed scope of counsel's questions. (30 RT 6420

6422.) 20

Defense counsel also questioned Mr. Lightsey about his mother's and

father's separation, and his father's illness, hospitalization, and hunger strike. (30

RT 6422-6423.) After Mr. Lightsey testified that his father began reading the

Bible and went on a hunger strike, he commented that the prosecutor was out to

ruin his family through fraud and solicitation of perjury. (30 RT 6423.) The court

struck Mr. Lightsey's comment about the prosecutor, and counsel questioned Mr.

Lightsey about his father's physical disability, his hunger strike after reading the

Bible, and his head injury and consequent equilibrium problems after being hit in

the head with a baseball. (30 RT 6423-6425.)

2. Testimony From Richard Lightsey, Mr. Lightsey's YoungestBrother, About Their Father

Richard Lightsey is Mr. Lightsey's youngest brother, and he testified at

trial about their father's physical attack against their mother in 1969 or 1970, his

father's move to a separate room in the house after the attack, his father's fast with

bread and water, and his father's 100-pound weight loss and medical

hospitalization. (31 RT 6661-6664.) Their father was a "strict" disciplinarian

when Richard was young, but he became increasingly less involved in disciplining

his children as Richard was growing up. (31 RT 6664.)

Richard and his mother moved out of the house when Richard was in high

school. When Richard returned to his father's home one night, he overheard his

father crying in his nearby room and asking for mercy. (31 RT 6665.) Richard's

father killed himself in June 1978, and Richard saw appellant crying hysterically

20 The struck Mr. Lightsey's answer that he thought Dr, Manohara "was beingmanipulative," and ruled the answer was limited to "yes." (30 RT 6422.)

80

and banging on the garage wall with his hands and head when he arrived at the

house just after his father's suicide. (31 RT 6666.)

3. Testimony From Dr. William Pierce About The PsychiatricReports And Mr. Lightsey's Father

In 1994, Ralph McKnight, Mr. Lightsey's advisory counsel, contacted Dr.

Pierce and asked him to help create a psychosocial profile for Mr. Lightsey, and

Dr. Pierce met with Mr. Lightsey at Tehachapi State Prison twice in October 1994.

(31 RT 6680-6694.) In preparation for his interview and examination, Dr. Pierce

reviewed police and coroner's reports, transcripts of the preliminary examination

and another hearing in July 1994, the defense investigator's background report,

and three psychiatric reports prepared done by Drs. Burdick, Manohara, and

Velosa. (31 RT 6694.) Based on his interviews with Mr. Lightsey and family

members and the materials identified above, Dr. Pierce concluded that

"Mr. Lightsey was suffering from a severe emotional disturbance. Idiagnosed him having a paranoid delusional disorder and anarcissistic personality disorder with depressive features. Hisdelusional paranoid disorder is what we call the persecutory type."

(31 RT 6695.)

Dr. Pierce believed that Mr. Lightsey was surprised to see him, and very

cautious and guarded at first. (31 RT 6695-6696.) Dr. Pierce explained that he

was not there to discuss the circumstances of Mr. Compton's death, but to gather

information about Mr. Lightsey's background and history and develop a

psychological and social profile. (31 RT 6696.) Mr. Lightsey relaxed some

during the interview, but did not stay on subject and came across as

"overly verbose, using a lot of words, pressured speech, just a -- apush to get the words out.

"His thinking can be described as what we call fragmented thinking.He would jump from one topic to another topic.

"He had what we describe as loose associations. He would say

81

something that would remind him of something else, and he wouldgo off and talk about that without any transition, and that's calledwhat we call tangential thinking.

"I frequently had to bring him back to the original topic that we werediscussing in order to kind of make some sense out of what we weretalking about.

"So in this reQard the interviews wen~ verv lenp-thv :mrl von to h:::trl to4"..1 .t 0'.1 _. _. J - •. - - ---- _. --

take -- 1 had to take my time and listen to a lot of, what 1 thought,extraneous and irrelevant topics in order to focus on and getinformation that 1needed, but he certainly came across as disorderedthinking when 1talked to him in the -- right at the beginning."

(31 RT 6696-6697.)

Dr. Pierce characterized Mr. Lightsey as having "labile affect," because he

was unable to control and modulate his affect very well [he switched from being

very angry to very sad in a very short amount of time]." (31 RT 6697.)

According to Dr. Pierce, Mr. Lightsey further exhibited labile affect by discussing

his feeling of persecution, and invoked the wrath of God and that God would

avenge and protect him and his family from the terrible wrongs being done to

them. (31 RT 6697-6698.) Mr. Lightsey was unable to control his emotions at

times because of the persecution he felt was being unfairly wrought on him and his

family. (31 RT 6698-6699.) Though Mr. Lightsey was insistent and emphatic

about the conspiracy against him, he also exhibited a sense of hopelessness and

despair that he was unable to control. (31 RT 6699.)

Dr. Pierce attempted to perform some psychological tests on Mr. Lightsey,

but he refused to take the tests during their first interview because he felt there was

nothing wrong with him and the tests were unnecessary. (31 RT 6702.) Given

Mr. Lightsey's reluctance, the doctor believed he should gather additional

background information, and told Mr. Lightsey it was necessary that he be tested

later. (31 RT 6702.)

Mr. Lightsey agreed to talk with the doctor about his childhood. (31 RT

6703.) He enthusiastically reported having had a "completely happy family,"

82

growing up in a loving and nurturing home, and all of the siblings had good and

warm relationship's with each other. (31 RT 6703.) Mr. Lightsey was the third of

six children, all of the children attended Catholic schools, his family had the

largest house on the block, they had a pool table, dogs and animals in the

backyard, and his father was an electrician who had his own business. (31 RT

6703.)

Dr. Pierce interviewed Mr. Lightsey's brothers Richard and Joe and his

mother Rita. (31 RT 6703-6704.) Based on those and other information from

family members, the doctor believed it was very significant that Mr. Lightsey

characterized his family as close knit and loving whereas the other information he

obtained was very different. (31 RT 6704.) Rita Lightsey reported that Mr.

Lightsey was not an easy child to raise, he was somewhat hyperactive, and he had

problems that her other children did not have. (31 RT 6704.) Mr. Lightsey was

very close to his father, who often took Mr. Lightsey's side whenever Rita had

difficulty with him. (31 RT 6704.) Mr. Lightsey also had medical problems

[hypothyroidism] that was successfully treated with medication. (31 RT 6704.)

During Dr. Pierce's interview with Rita, Mr. Lightsey's mother, they talked

mostly about Mr. Lightsey's relationship with his father. (31 RT 6704.) Mr.

Lightsey's father was a strong disciplinarian who used physical punishment

[whipping with a belt that was akin to child abuse] to discipline his children, and

he whipped Mr. Lightsey more than his other children while also being protective

of him. (31 RT 6705,6706.) Rita was afraid to comment about Mr. Lightsey's

father's behavior because she was afraid he might react violently against her. (31

RT 6705.) Dr. Pierce verified the information from Rita about Mr. Lightsey's

father's violent conduct with other family members who reported a lot of tension

in the family because of the father's conduct. (31 RT 6705.)

Dr. Pierce talked with Mr. Lightsey about Rita, whom he described as a

perfect mother, and akin to the "Virgin Mary." (31 RT 6706-6707.) Mr. Lightsey

also described his father in glowing terms by saying he was a very clever, original,

83

creative and friendly man who had a successful business as an electrician, and his

relationship with his father was very positive. (31 RT 6707.) Although Mr.

Lightsey described the relationships between his parents, between his parents and

their children, and between the children themselves as warm and nurturing and

like an all-American family, the information Dr. Pierce obtained from Rita and

Mr. Lightsey's siblings was very different than what Mr. Lightsey reported. (31

RT 6707-6708.)

As Mr. Lightsey grew older, the relationship between his parents became

more strained and they separated. (31 RT 6710.) Mr. Lightsey seemed to be very

affected by his parent's breakup - he was arrested for selling marijuana while

attending City College in Bakersfield. (31 RT 6710-6711.) Mr. Lightsey reported

that his father approved of him selling drugs, but that caused additional conflict

with other family members who were opposed to selling drugs. (31 RT 6711.)

Around the time of Mr. Lightsey's arrest, his father was hospitalized and

had back surgery. (31 RT 6712.) While in the hospital, Mr. Lightsey's father

reported having a vision that he was not going to die, he did not have to be buried,

and he had special powers and abilities like playing the piano well [in reality, he

could not play the piano at all]. (31 RT 6712.) After he was released from the

hospital, Mr. Lightsey's father began drinking a great deal and heavily using his

pain medication, reading the Bible more, and became even more violent towards

his family [once, he chased his family around the house with a knife]. (31 RT

6712-6713.) The police were called to the Lightsey home on two occasions, and

Mr. Lightsey's father was hospitalized each time in Ward B at Kern County

Hospital- the hospital's psychiatric ward. (31 RT 6713.)

Mr. Dougherty tried to question Dr. Pierce about the relevance of Mr.

Lightsey's father's conduct to his diagnosis of Mr. Lightsey's mental disorder by

asking if he had an opinion about the father's conduct at the time. The prosecutor

objected to the relevance of this inquiry, and the trial court sustained the objection.

(31 RT 6714.) Dr. Pierce questioned Mr. Lightsey about the effect of his father's

84

conduct on him, and Mr. Lightsey said he did not think his father's conduct was at

all "bizarre." (31 RT 6714.) Instead, Mr. Lightsey seemed proud of his father's

conduct by saying that he had "engaged in spiritual flushing and related this

behavior to some grandiose spirituality that his father was experiencing." (31 RT

6714.) Dr. Pierce was surprised by Mr. Lightsey's characterization because he felt

his father's conduct was "psychotic." (31 RT 6714.)

Mr. Lightsey was again arrested for selling marijuana in 1974 or 1975, and

went to jail. (31 RT 6715-6716.) After he was released from jail, Mr. Lightsey

did well for a number of years by staying out of the criminal justice system and

attending college at California State University-Bakersfield. (31 RT 6716.)

On June 11, 1978, Mr. Lightsey's father committed suicide by shooting

himself in the head. (31 RT 6716.) Mr. Lightsey discovered his father's body in

the bedroom, and became very upset and went to pieces [banging his head and

fists on the garage door and crying out that his father never said goodbye to him].

(31 RT 6716-6717.) Other than his conduct immediately after finding his father's

body, Mr. Lightsey seemed not to have much of a response to his father's death.

(31 RT 6717-6718.) Mr. Lightsey's reported lack of further response to his

father's death surprised Dr. Pierce who would have suspected that Mr. Lightsey

would have had "a great reaction to the loss of his father." (31 RT 6718.) Dr.

Pierce believed that Mr. Lightsey's reaction was "clinically significant, because it

suggested the development of a defensive system psychologically to defend one's

self against the pain and the loss of this tragedy." (31 RT 6718-6719.)

Mr. Dougherty also asked Dr. Pierce if he made any "psychiatric

evaluations" after his interviews with Mr. Lightsey and reading the reports he was

provided. (31 RT 6721.) Dr. Pierce replied that he did not, but he read "other

psychiatric evaluations, reports that were done by other psychiatrists that I read

subsequent to my coming to an opinion, and he was evaluated by these

psychiatrists July 1994 for a couple of reasons. One -" (31 RT 6721-6722.)

Before Dr. Pierce could complete his answer, the prosecutor objected and said the

85

court and parties had earlier reached an agreement about Dr. Pierce's testimony

about the psychiatrists' reports and evaluations. (31 RT 6722.)

Mr. Dougherty replied that he "recall[ed] laying a foundation and that the

doctor was going to explain that he read these psychiatric evaluations as part of the

foundation for arriving at his conclusion." (31 RT 6722.) The court agreed, and

ruled "That was to be a general reference, as you'll recall. We seem to getting into

the detail of what the other psychiatrists -- not the other -- the psychiatrists --,"

and sustained the prosecutor's objection. (31 RT 6722.)

Dr. Pierce testified that he reached "a professional opinion as to Mr.

Lightsey's personality" after interviewing family members and reviewing the

psychiatric reports and other material. (31 RT 6722-6723.) According to Dr.

Pierce, Mr. Lightsey suffers from a "delusional paranoid disorder, persecutory

type, and narcissistic personality with depressive features" and further explained

that

"In psychiatric diagnosis, we diagnose according to what we callaxes. Axis one diagnosis, what we call the -- what's happening now,what a -- predominant symptoms that the person is showing now.

"His axis one diagnosis was delusional paranoid disorder,persecutory type.

"Now, this type of paranoid disorder is characterized by delusions.

"A delusion is a false belief that a person has and that a person actsupon. Even in the face of contravening, contradicting evidence inhis environment and by other people, the person still acts as if thiswas true. It's not a belief. It's a false belief, and it's a committedfalse belief.

"The persecutory type refers to a person believes that people are outto get him, that people are out to harass them that, that people are outto harm them. In his case the system was out to either destroy himand his family, and this is the predominant symptom that you see.

"Now, what makes this a severe psychiatric disorder is that theperson is consumed by this delusion, that everything gets fitted into

86

this false belief system, and they act as if it's true. So that one's logicis disrupted, one's ability to test reality in a proper way is disrupted,because you're fitting everything into this false belief. That's hisaccess one diagnosis.

"His axis two diagnosis which is - you diagnose long-standing eitherpersonality disorders or character disorders long term, over longperiod of time, maladjustments on axis two, and my diagnosis wasnarcissistic personality disorder with depressive features.

"A narcissistic -- first of all, personality -- we all have a personalitystyle.

"Now, a style is not a disorder. When a particular personality stylebecomes so maladapted that it interferes with social, occupational orother types of every day functioning, we call that a personalitydisorder. It becomes a diagnosable psychiatric symptom. So we'retalking about a personality disorder.

"A person who comes across as extremely taken by themselves,having a grandiose sense of self-importance, looking out forthemselves, some people might say, well, that's -- he's just a selfishperson, a person that is -- gets extremely upset whenever they'recriticized by anybody else, person who feels that they're entitled tosome special treatment or that they have some special talents thatshould be regarded. This type of personality style, that when it'smaladapted, develops into a narcissistic personality disorder.

"The reason I included depressive features with this is because oneof the things that carne across -- as I said before, this kind ofunderlining sense of despair and sadness that seemed to pop outevery now and then.

"One of the ways I explain a narcissistic personality disorder is likethis. People have what we call an ideal self, a sense of what youwould really like to be. And you have a real self.

"Narcissistic personalities have over-grandiose, over-ideal selfimaging, how special they are. The difference between the reality oftheir real self and that ideal self when you look at it usually isdepression, because you just can't own up on that. There has to besome feelings owned up on that. That's why I added into this the

87

depressive features as to axis two."

(31 RT 6723-6726.)

Mr. Dougherty asked Dr. Pierce whether he found "certain important issues

in Mr. Lightsey's personality development" and the doctor answered

"Yes. I think it's important to note that the type of family situationihai Mr. Lighisey grew up in, in my opinion, helped contribute to thedevelopment of his psychiatric and psychological and emotionaldisturbance. Clearly there was a clear identification with the father.There was a traumatic suicide. There was the minimization anddenial of this.

"In my opinion when he began not to react in an expectable wayfrom the loss of trauma, he was already beginning to build a worldof denial where he could live in this world where that pain could notget to him.

"He distorted the reality of finding his father shot to death in thehead. Having that tremendous loss, how in the world can you goback to acting if nothing happened if you do something in your headthat denies the reality of that, that distorts the reality of that, thatmakes you live in a false system and somewhat of a fantasy worldabout that.

"To me that was clinically important in how this developed over theyears and got to the point where we could diagnose it as a delusionalparanoid disorder.

"The child abuse, the physical abuse that a child goes through,particularly in this case, forces a kid to form what we call a veryambivalent relationship to the father, one where you want to try toplease him and avoid the punishment and his wrath and, two, tryingto minimize again -- distort the reality of the negative aspects of thefather.

"So what you get with this that supports this is a description of hisfather in all glowing terms, omitting any of the physical abuse, anyof the negative things about his father, any of the psychotic behaviorthat he had to witness.

"All things about his father are okay. That's a distortion and denialof reality. And in a sense that's what a paranoid disturbance does. It

88

distorts and denies reality, and the person acts as if their reality isdifferent than what most other people see.

"So the development of this has to do with the development of hispersonality and the things that went on in his early life, hisadolescent life and certainly his young adult life."

(31 RT 6726-6728.)

After earlier describing Mr. Lightsey's father's behavior as "psychotic," Dr.

Pierce testified that the father's behavior "affected everybody in the family." (31

RT 6728.) Specifically as to Mr. Lightsey, his father's conduct affected the

development of his personality by

"minimiz[ing] the consequences of his behavior [selling drugs]. Andthis - these incarcerations play into the fact, from his point of view,the fact that here's another indication that the system's out towrongly get me, the system's out to destroy me, the system's out todestroy my family, also. So that he takes these, these incidences,and he puts it into the delusional framework and uses it asjustification for why the system is against him. He uses it to supporthis false belief."

(31 RT 6728-6729.)

After testifying about Mr. Lightsey's difficulty communicating and

inability to stay focused as symptomatic of his "thought disorder ... a basic

ingredient in psychosis" and "a severe symptom in emotional disturbances," Dr.

Pierce addressed Mr. Lightsey's "disorganized thinking" as follows:

"And one topic had to do when he had to discuss his father's suicide.He became loose, in my opinion, loose and tangential andfragmented and indicating kind of a clear conflict over his father'sdeath as he became more loose in his conversation.

"And also when he - when he was asked about his reaction to hisfather's death, where he tried to, in a sense, minimize it and thencome back and say he did have some reaction. His associationsbecome loose there and some way almost symbolic and almostwishful feeling as he talked about going hunting, fishing and thegrand relationship that he had with his father.

89

"If you look at those, just those excerpts, you can see that he losesdistance from the original question. He goes off on a tangent. Hisassociations become loose. And it's the same type of thoughtdisorder as described before."

(31 RT 6732-6733.)

Mr. Dougherty asked Dr. Pierce how long he thought Mr. Lightsey suffered

frnm thp mpnt::ll ::Inn pmntinn::ll ni<;:tnrh::lnr'p<;: inpntifiprl ",nrl thp rl,..."t,...r r""nli""rl............................. - _ _ __ _ _ _ """_ _~ _ &~ ..L__ , \.4 _ __v"" v v!"'.&. ""_

"I think he's suffered from them for years. In my opinion, I think it'stypical for these kinds of disturbances to -- particularly paranoiddelusional disturbance in late adolescence or early adulthood - Ithink circumstances around his father's death and how he handledthat are clinically indicative to me that this disturbance wasbeginning to develop at that time, and I think it just consistentlydeveloped more and more over the years."

(31 RT 6733-6734.)

In addition, Dr. Pierce believed Mr. Lightsey's childhood and growing up

in a dysfunctional family affected him as follows:

"The difficulties between the mother and the father, the child ofphysical abuse, the -- certainly the trauma over the father's psychoticbreak and how that impacted the family and finally the trauma of thesuicide I think are all important features in milestones in hispersonality development."

(31 RT 6734-6735.)

4. The reports from Drs. Burdick, Manohara, and Velosa 21

Dr. Burdick did not perform a psychiatric evaluation, because Mr. Lightsey

refused to speak with him without a court reporter present to transcribe the

proceeding, but he believed from his brief meeting that Mr. Lightsey did not

behave in a peculiar manner, he was in control of his mental faculties, he

demonstrated no psychiatric illness, his conduct while in custody was deliberately

21 In the interest of brevity, Mr. Lightsey will not again detail the contents of thedoctors' reports. (See Opening Brief at pp. 196-202.) Instead, he will summarizethe salient points and their impact on the instant claim.

90

disruptive, and he was capable of cooperating with counsel in a rational way. (2

Conf. CT 398.)

Dr. Manohara performed a psychiatric evaluation, and concluded that Mr.

Lightsey, while he displayed symptoms of mental illness which, in the doctor's

opinion made him incompetent to represent himself, did not have a clear cut

psychotic or diagnosable mental disorder. Instead, the doctor believed Mr.

Lightsey exhibited a personality disorder, and rationalized his behavior to a high

degree to justify his personal deficits and/or irresponsible behavior. Mr. Lightsey

described his childhood very favorably, he refused to discuss his father's death,

and he denied any family history of mental illness. Mr. Lightsey seemed to lack

empathy, and had a sense of personal exaggeration and entitlement. Dr. Manohara

concluded that Mr. Lightsey's personality characteristics and conduct during the

interview rendered him incompetent to represent himself. (2 Conf. CT 392-395.)

Dr. Velosa also performed a psychiatric evaluation, in which he spent more

time with Mr. Lightsey than had Dr. Manohara. He concluded that Mr. Lightsey

suffered from a psychiatric disorder [bipolar disorder (manic type) or a paranoid

disorder] that impaired his thinking process. Mr. Lightsey's psychotic symptoms

were profound and caused him to experience paranoid thinking, persecutory

delusions, and a false belief that there was a conspiracy against him. (2 Conf. CT

400-403.)

C. The Trial Court's Rulings Restricted Defense Counsel's ExaminationOf Dr. Pierce In A Way That Violated Mr. Lightsey's Federal And StateConstitutional Rights To Due Process And A Reliable PenaltyDetermination Under The Fifth, Sixth, Eighth And FourteenthAmendments To The United States Constitution And Article I, Sections1, 7, And 15 Of The State Constitution

Respondent concludes that the trial court did not restrict defense counsel's

examination of Dr. Pierce because (l) "counsel never requested the trial court to

make a ruling;" (2) "counsel did not request permission to examine Pierce

regarding the information he considered in forming his opinion;" (3) "counsel

91

never requested permission to examine Pierce regarding the conduct and

symptoms of appellant's father." (RB 187-188.) Respondent is mistaken.

1. Defense Counsel Did Not Waive The Instant ClaimConcerning The Trial Court's Limits On Dr. Pierce'sTestimony

As detailed above, the prosecutor objected when defense counsel

questioned Mr. Lightsey about the three psychiatric examinations that were

ordered after Mr. Lightsey said he wanted to waive his right to counsel and

represent himself. Defense counsel explained that he questioned Mr. Lightsey

about the examinations because he wanted to segue from the examinations to the

doctors' reports "as a matter of mitigation." (30 RT 6395.) The prosecutor again

objected and the court ruled that there would be no more references to the Section

1368 proceedings. (30 RT 6401.) During the in limine conference requested by

the prosecutor, defense counsel said one of the doctors [Dr. Velosa] concluded that

Mr. Lightsey suffered from a "psychotic deficiency" and he wanted to "bring out

through Dr. Pierce, that he [Mr. Lightsey] had bipolar disorder manic type." (30

RT 6408.) The prosecutor objected that the psychiatric reports were inadmissible

under People v. Nicolaus (1991) 54 Ca1.3d 551, and defense counsel replied that

the reports were admissible and relevant under "the Drew decision" 22 and

CALJIC No. 8.85 because the examinations involved

"whether or not at the time of the offense the capacity of thedefendant to appreciate the criminality of his conduct or to conformto his conduct to the requirements of the law was impaired as a resultof mental disease or defect or the effects of intoxication."

(30 RT 6411.) The court ruled that defense counsel could not question Mr.

22 It appears counsel was referring to People v. Drew (1978) 22 Ca1.3d 333,overruled in People v. Skinner (1985) 39 Ca1.3d 765, 768-769. According to theSkinner court, the test for insanity adopted in Drew was abrogated in June 1982 bythe electorate's passage of Proposition 8 [a return to the M'Naghten standard forpurposes of determining insanity.].

92

Lightsey and/or Dr. Pierce about the contents of the respective reports. (30 RT

6413.)

As established above, defense counsel repeatedly expressed his intention to

elicit evidence in mitigation [the three psychiatrists' reports] that he believed were

relevant to the jury's penalty decision pursuant to Penal Code section 190.3(d),

and specifically Dr. Velosa's opinion that Mr. Lightsey suffered from a psychotic

disorder [bipolar manic type disorder]. The trial court repeatedly sustained the

prosecutor's objections, and its strict rule was that defense counsel could only

elicit that Mr. Lightsey was examined by three psychiatrists at the court's request,

but not what the psychiatrists said in their respective reports about Mr. Lightsey.

Respondent cites People v. Rowland (1992) 4 Ca1.4th 238,265, fn. 4, and

People v. Raley (1992) 2 Ca1.4th 870, 892, and concludes that defense counsel

waived the instant claim by failing to seek a ruling from the trial court about the

admission of the psychiatric reports, and to object to the "alleged" ruling

restricting Dr. Pierce's testimony. (RB 188.) Respondent's reliance is misplaced.

In Rowland, this Court addressed Evidence Code section 353 and held that

three factors must exist before an issue is deemed preserved for appellate review:

(1) a specific legal ground for exclusion [or admission] is advanced at trial and

subsequently raised on appeal; (2) the motion to exclude [or admit] is directed to a

particular, identifiable body of evidence; and (3) the motion to exclude [or admit]

is timely and allows the trial court to determine the evidentiary question in its

appropriate context. (People v. Rowland, supra, 4 Ca1.4th at p. 264, fn. 3.)

Mr. Lightsey satisfies all three factors because defense counsel's legal

ground for admission of the psychiatric reports was the relevance of the reports [at

least Dr. Velosa's report] to a recognized factor under Section 190.3(d); the

motion to admit the evidence was directed to specific evidence [Dr. Velosa's

identification of Mr. Lightsey as suffering from a psychotic disorder - bipolar

manic disorder]; and the attempt to admit the evidence was timely and allowed the

trial court to determine the evidentiary question in an appropriate context.

93

Because defense counsel's attempts to admit the evidence at issue satisfy the

factors detailed in Rowland and Evidence Code section 353, defense counsel

protected the record on appeal and preserved the instant claim for appellate

review. (See People v. Brown (2003) 31 Ca1.4th 518,546-547.)

In addition to satisfying the requirements of Evidence Code section 353, the

record establishes that the trial court's repeated rulings that defense counsel could

not elicit the evidence at issue were unequivocal, and it would have been futile for

counsel to make any additional objections to the court's strict rules not to allow

the evidence at issue to be admitted into evidence. (See 30 RT 6399-6414; 31 RT

6721-6722.) Under the circumstances and in light of the trial court's repeated

rulings excluding the evidence at issue, it would have been futile for counsel to

make any further requests to admit the evidence or object to the trial court's

rulings. (People v. Hill (1998) 17 Ca1.4th 800, 820.)

Beyond the above, defense counsel preserved the constitutional grounds

being claimed on appeal by specifying that the evidence sought to be admitted was

based on Mr. Lightsey's right to have the jury consider all relevant evidence in

determining penalty under a recognized factor. (30 RT 6406-6407.) As such,

defense counsel's requests to admit the evidence at issue were sufficient to alert

the trial court of the nature of the anticipated evidence on which admission was

sought; defense counsel's requests afforded the prosecution.the opportunity to

argue that although defendants have the constitutional right to introduce a broad

range of evidence in mitigation, the instant request was irrelevant and inadmissible

as incompetent hearsay; and the trial court was fairly informed that the evidence

should be admitted as part of Mr. Lightsey's right to have the jury consider all

relevant evidence in mitigation. (See People v. Partida (2005) 37 CalAth 428,

435.)

In People v. Ashmus (1991) 54 Ca1.3d 932, 1001-1002, disapproved on

other grounds in People v. Yeoman (2003) 31 Ca1.4th 93,117, the Court

recognized that the defendant was correct by arguing that the cruel and unusual

94

punishments clause of the Eighth Amendment [and the due process clause of the

Fourteenth Amendment] and the United States Supreme Court's decisions in

Lockett v. Ohio (1978) 438 U.S. 586,604, Eddings v. Oklahoma (1982) 455 U.S.

104, 110, and Skipper v. South Carolina (1986) 476 U.S. 1,4, provide, as

fundamentals right[s] under the Federal Constitution, that the sentencer in a capital

case may not be precluded from considering relevant evidence offered as a basis

for a sentence less than death. During his argument in support of the admission of

the doctors' reports, especially the one from Dr. Velosa, defense counsel argued

the evidence should be admitted because it was relevant evidence offered in

mitigation of punishment that should be considered by the jury in determining

penalty. (30 RT 6403-6413.) Under the circumstances, it was readily apparent to

the court and prosecutor that Mr. Dougherty sought to introduce the evidence at

issue based on Mr. Lightsey's fundamental federal and state constitutional rights

to have the jury consider all relevant evidence proffered for a sentence less than

death. As such, defense counsel preserved the instant claim that the trial court's

refusal to admit the evidence at issue violated Mr. Lightsey's rights under the

Eighth and Fourteenth Amendments to the United States Constitution and their

analogous California counterparts.

Based on the decision in People v. Partida, supra, 37 Ca1.4th at p. 435, Mr.

Lightsey is entitled to argue that the trial court's erroneous denial of counsel's

attempts to admit the evidence at issue not only violated his rights under the

Eighth Amendment, but also rendered the penalty phase of his trial fundamentally

unfair in violation of the due process clause of the Fourteenth Amendment.

Because defense counsel's attempt to introduce the evidence at issue was grounded

in his federal constitutional right to have the jury consider all relevant evidence

proffered in mitigation for a sentence less than death, the refusal rendered his trial

fundamentally unfair, and defense counsel's efforts fairly informed the trial court

of the analysis it was being asked to undertake, Respondent is mistaken that Mr.

Lightsey waived his federal constitutional claims under the Eighth and Fourteenth

95

Amendments to the United States Constitution. (RB 188.)

2. The Trial Court Erred By Preventing The Defense FromIntroducing Relevant Evidence Proffered For A Sentence LessThan Death In Violation Of Mr. Lightsey's Rights Under TheFederal And State Constitutions

Respondent concludes that even if defense counsel did not waive the instant

claim, th~r~ is no error because the psychiatrists' reports and Dr. Pierce's

testimony about them and Mr. Lightsey's father were properly excluded as

inadmissible hearsay. (RB 188-189.) Again, Respondent is mistaken.

Respondent spends several pages detailing general principles of law

regarding a capital defendant's right to present and have the jury consider all

relevant mitigating evidence, the trial courts' traditional discretion concerning the

admission of evidence, the importance and need for foundational prerequisites,

and the proper nature and scope of expert testimony. (RB 189-191.) Contrary to

Respondent's argument, the trial court erred by excluding the evidence under those

same principles of law.

Expert testimony, like all other evidence, must be relevant and competent

regarding a material issue. (People v. Bowker (1988) 203 Cal.App.3d 385,390.)

According to the Court of Appeal in Bowker, a case cited in People v. Nicolaus,

supra, 54 Ca1.3d at p. 583, in support of its holding,

"Evidence Code section 801 prescribes two specific preconditions tothe admissibility of expert opinion testimony. The testimony mustbe of assistance to the trier of fact and must be reliable. [Citation.]"

(People v. Bowker, supra, 203 Cal.App.3d at p. 390.)

During the hearing to determine whether Mr. Lightsey was competent to

represent himself pursuant to Faretta v. California (1975) 422 U.S. 806, the

prosecution called Drs. Burdick, Manohara, and Velosa as its witnesses and

moved to admit their reports into evidence. (RT 8-2-1994, 14-143.) Although the

prosecutor argued that the doctors' focused on whether Mr. Lightsey was

competent to stand trial, he also argued that their opinions and conclusions about

96

Mr. Lightsey were sufficiently reliable and relevant to the question now before the

court - whether Mr. Lightsey had the capacity to intelligently and knowingly

waive his right to counsel. (RT 8-2-1994,147-148.) According to the prosecutor,

it was "quite clear" that Drs. Manohara and Velosa were correct in deciding that

Mr. Lightsey had the requisite capacity and ability to make that waiver. (RT 8-2

1994, 147-149.) 23

Even though the prosecutor noted that Drs. Manohara and Velosa disagreed

about the specific nature of Mr. Lightsey's mental disorder, he did not dispute the

doctors' conclusions that Mr. Lightsey indeed "suffers from mental disorders"

and urged the court to consider their opinions and make its own "determination"

about the nature of the disorder. (RT 8-2-1994,148-150.) 24 Also, the prosecutor

argued that all the doctors' accurately and correctly recognized that Mr. Lightsey

sufficiently understood the charges against him, the possible consequences of

those charges, and the relevant defense[s] to those charges. (RT 8-2-1994, 149.)

Further, the prosecutor posed many, many objections during Mr. Lightsey's cross

examination of the doctors and concluded that the examination of the doctors was

sufficient to present the court with reliable evidence to decide whether Mr.

Lightsey was competent to waive counsel. (RT 8-2-1994, 48-143, 147-151.)

Finally, even the trial court recognized that all three psychiatrists were reliable

and accurate regarding their assessments of Mr. Lightsey and his abilities. (RT 8-

2-1994, 159.)

23 Dr. Burdick did not render an opinion about whether Mr. Lightsey had thecapacity to make an intelligent and knowing waiver of the right to counsel, but didconclude that Mr. Lightsey "is in control of his faculties" and capable ofcommunicating with and rationally cooperating with counsel. (RT 8-2-1994, 7376.)24 The prosecutor did mention in passing that "[t]here is a dispute as to whether ornot he [Mr. Lightsey] suffers from some type of mental disorder." (RT 8-2-1994,149.) Though Dr. Burdick testified that Mr. Lightsey did not exhibit any"psychiatric illness" during their brief encounter, the doctor admitted that hisopinion was far from certain because he did not "complete [or conduct] a formalpsychiatric evaluation." (2 Conf. CT 398; RT 8-2-1994, 72-75.)

97

In Green v. Georgia (1979) 442 U.S. 95, 96, the capital defendant was

prevented at his trial from introducing evidence from his codefendant's separate

trial that had been elicited and used by the prosecution to establish that the

codefendant alone had murdered the victim. After the prosecution succeeded in

excluding this evidence on state-law based hearsay grounds, defendant was

convicted and sentenced to death. The Supreme Court reversed the penalty

judgment and held

"Regardless of whether the proffered testimony comes withinGeorgia's hearsay rule, under the facts of this case its exclusionconstituted a violation of the Due Process Clause of the FourteenthAmendment. The excluded testimony was highly relevant to acritical issue in the punishment phase of the trial, [Citation.]' andsubstantial reasons existed to assume its reliability. Moore made hisstatement spontaneously to a close friend. The evidencecorroborating the confession was ample, and indeed sufficient toprocure a conviction of Moore and a capital sentence. The statementwas against interest, and there was no reason to believe that Moorehad any ulterior motive in making it. Perhaps most important, theState considered the testimony sufficiently reliable to use it againstMoore, and to base a sentence of death upon it. [Fn omitted.] Inthese unique circumstances, 'the hearsay rule may not be appliedmechanistically to defeat the ends of justice.' [Citation.]. [Fn.omitted.] Because the exclusion of Pasby's testimony deniedpetitioner a fair trial on the issue of punishment, the sentence isvacated and the case is remanded for further proceedings notinconsistent with this opinion."

(Green v. Georgia, supra, 442 U.S. at p. 97.)

In People v. Weaver (2001) 26 Cal.4th 876, 980-981, the defense's mental

health expert testified he developed a diagnostic tool called the "Vietnam Era

Stress Inventory (VESI)" that he believed helped diagnose whether an individual

suffered from war-induced post traumatic stress disorder. The expert administered

the VESI to the defendant and tape recorded his responses. The trial court

excluded the videotapes as unreliable because the defendant made them to support

his claim of insanity and there was no basis from which to conclude with any

98

degree of certainty that his statements on the tapes were true. The Supreme Court

affirmed the trial court's ruling and agreed the tapes were self-serving and

unreliable because the prosecution was unable to test the statements' truth through

cross-examination. In rejecting the defendant's claim that the trial court's

exclusion of the tapes violated his rights to due process and a reliable penalty

determination, the Weaver court held that Green v. Georgia does not negate the

state's rules of evidence by allowing capital defendants to introduce all evidence

offered for a sentence less than death.

In Mr. Lightsey's case, the prosecution called all three doctors as its

witnesses in pretrial proceedings on Mr. Lightsey's competence to represent

himself and moved to admit their reports into evidence. The prosecution had an

unlimited opportunity to question the doctors during their lengthy testimony and

object to anything they wrote or said that it believed was objectionable or

improper, and the prosecution urged the trial court - indeed, the same judge later

who presided over Mr. Lightsey's trial - to consider the evidence from the doctors

in deciding whether Mr. Lightsey was competent to waive counsel. Finally, the

trial court relied in significant part on the doctors' testimony and reports in

deciding that Mr. Lightsey was competent to waive counsel and represent himself.

Under the circumstances, the trial court abused its discretion by excluding the

doctors' reports and thereby violated not only the rules governing the scope of

expert testimony, but also Mr. Lightsey's federal and state constitutional rights to

due process and to have his sentencing jury consider all relevant evidence he

proffered for a sentence less than death. (People v. Bowker, supra, 203

Cal.App.3d at p. 390; Skipper v. South Carolina, supra, 476 U.S. at p. 4; Green v.

Georgia, supra, 442 U.S. at p. 97.)

In his Opening Brief, Mr. Lightsey detailed the reasons why his father's

conduct was highly relevant to the question of whether it was relevant mitigating

evidence. (Opening Brief at pp. 207-209.) Although Dr. Pierce was allowed to

testify in some detail about Mr. Lightsey's father's conduct, including labeling it

99

"psychotic," the trial court prevented Dr. Pierce from rendering an opinion about

how and why Mr. Lightsey's father's conduct contributed to Mr. Lightsey's

profound mental disorder. (31 RT 6713-6714.)

Given the recognized genetic and environmental causes of serious mental

illness and Dr. Pierce's belief that Mr. Lightsey was greatly affected by his

father's behavior, Dr. Pierce's more detailed opinion testimony about Mr.

Lightsey's father's symptomatic behavior and mental illness at the time of his

involuntary psychiatric commitment would have been very relevant evidence as to

Mr. Lightsey's own mental illness. (30 RT 6406-6407; 31 RT 6713-6714.) (See

also Eddings v. Oklahoma, supra, 455 U.S. at pp. 115-116, discussing the

relevance and importance of parental conduct, behavior, and mental health to the

development and existence of mitigation evidence during the penalty phase.)

Accordingly, the trial court abused its discretion and evidenced its fundamental

misunderstanding of the defense's right to present mitigating evidence by

sustaining the prosecutor's relevancy objection to Dr. Pierce's expert opinion

testimony about Mr. Lightsey's father's psychiatric commitment. (See People v.

Hart (1999) 20 Ca1.4th 546, 637-638, In re Gay (1998) 19 Ca1.4th 771,816, and

Eddings v. Oklahoma, supra, 455 U.S. at pp. 115-116)

D. The Trial Court's Rulings Limiting Dr. Pierce's Testimony WerePrejudicial And Require The Reversal Of Mr. Lightsey's Judgment OfDeath

The erroneous limitation on Dr. Pierce's testimony violated Mr. Lightsey's

federal and state constitutional rights to due process and a reliable penalty

determination under the Eighth and Fourteenth Amendments to the United States

Constitution and the analogous provisions of the California Constitution which

require that his right to present the jury with all relevant evidence proffered as a

basis for a sentence less than death be as unrestricted as possible. (See Skipper v.

South Carolina, supra, 476 U.S. at p. 4; Ake v. Oklahoma, supra, 470 U.S. at pp.

76, 77, 80-81.)

100

The importance of mental health expert opinion testimony in Mr.

Lightsey's case was manifest. Major mental illness is well recognized as a basis

for finding diminished culpability and reduced ability to assist effectively in one's

own defense that militate against the death penalty. (See 31 RT 6866; Ford v.

Wainwright, supra, 477 U.S. 413, 417; People v. Danks, supra, 32 Ca1.4th at pp.

321-322; Williams v. Cain (W.D.La., 1996) 942 F.Supp. 1088, 1094-1095.) 25 In

Mr. Lightsey's case, such evidence also would have explained and mitigated his

bizarre and self-defeating behavior before the judge and jury.

The trial court instructed the jury about expert opinion testimony during the

penalty as follows:

"A person is qualified to testify as an expert if he hasspecial knowledge, skill, experience, or education sufficientto qualify him as an expert on the subject to which histestimony relates.

"A duly qualified expert may give an opinion on questionsin controversy at a trial.

"To assist you in deciding such questions, you may considerthe opinion with the reasons given for it, if any, by theexpert who gives the opinion.

"You may also consider the qualifications and credibility ofthe expert.

"You are not bound to accept an expert opinion asconclusive. But should give it the weight to which youthink you find it to be entitled. You may disregard any suchopinion if you find it to be unreasonable."

(32 RT 6912-6913.)

Given the instruction on expert opinion testimony that told the jury

essentially that Dr. Pierce's opinion testimony was only as good as the information

25 The record is replete with instances of Mr. Lightsey's acting out and interferingwith his counsel's ability to defend him. (See for example 26 RT 5518-5520; 30RT 6398,6399,6409,6432,6438,6445, 6449; 31 RT 6556-6558; 32 RT 6821,6833,6856-6862, 6865-6866, 6967-6969.)

101

upon which it was based, it was necessary and critical to Mr. Lightsey's penalty

defense that the jury be allowed to consider Dr. Pierce's opinion and the reasons

for it without unreasonable limitation.

In her penalty phase argument, the prosecutor exploited the exclusion of

evidence, attacking Dr. Pierce's competence, credibility, and ethics. (RT 6838

6840.) The prosecutor argued that Dr. Pierce was nothing more than a well-paid,

hired gun who testifies only for the defense in capital and other first degree murder

cases. (RT 6838-6839.) Consistent with her other challenges to Dr. Pierce's

competency and ethics, the prosecutor also argued that Dr. Pierce's refusal to

agree with her suggestion that Mr. Lightsey suffered from an antisocial personality

disorder was only because he did not want to testify in a way harmful to Mr.

Lightsey. (RT 6840.)

Here, Drs. Manohara and Velosa had evaluated Mr. Lightsey's competency

to stand trial and represent himself. (2 Conf. CT 392, 400.) 26 Mr. Lightsey

provided them with information about his case, his deep-seated belief that he was

falsely accused of murder, and he was being misrepresented by a series of

different counsel. (2 Conf. CT 392, 402.) Both doctors recognized the stream of

manic and pressured thinking that caused Mr. Lightsey to ramble on and avoid

answering the questions put to him. (2 Conf. CT 393, 402.) Mr. Lightsey

provided both doctors with his alibi theory and conspiracy allegations, and both

doctors noted Mr. Lightsey's exaggerated sense of self-importance and believed

his grasp on reality was tenuous at best. (2 Conf. CT 393-394, 402-404, 405.)

Though the doctors may not have identified the specific personality disorders

afflicting Mr. Lightsey, they agreed that Mr. Lightsey was severely mentally

disturbed, they agreed that he lacked insight into his mental health problems, and

they believed that it would be highly problematic to defend him because of his

26 Dr. Burdick's opinion about Mr. Lightsey cannot reasonably be construed as theproduct of an evaluation, since Mr. Lightsey refused to speak with him for morethan a minute or two.

102

profound mental illness. (See 2 Conf. CT 395, 405.)

The reports from Drs. Manohara and Velosa supported Dr. Pierce's

diagnosis and, given the nature of the instruction to the jury and the prosecutor's

argument, it was necessary to Mr. Lightsey's defense that the jury hear the details

from the reports supporting Dr. Pierce's opinion testimony. As emphasized in

cases like Atkins v. Virginia, People v. Danks [Justice Kennard's concurring and

dissenting opinion], and Williams v. Cain, the reports from Drs. Manohara and

Velosa were highly relevant because they supported and buttressed Dr. Pierce's

opinion that Mr. Lightsey's mental illness and lack of insight into his own

personality disorders and inability to assist with his defense rendered him less

culpable and less deserving of the death penalty. Because the reports from Drs.

Manohara and Velosa were relevant and reliable evidence and Dr. Pierce's opinion

about Mr. Lightsey's father's conduct at the time of his psychiatric commitment

would have heightened the overall reliability and weight of Dr. Pierce's opinion

testimony, the erroneous exclusion of that evidence was not harmless beyond a

reasonable doubt and Mr. Lightsey's judgment of death must be reversed.

(Chapman v. California (1967) 386 U.S. 18,24; People v. Fudge (1994) 7 Ca1.4th

1075, 1117; Skipper v. South Carolina, supra, 476 U.S. at pp. 7-9.)

II

103

IX.

MR. LIGHTSEY'S SENTENCE OF DEATH MUST BE REVERSEDBECAUSE THE TRIAL COURT PREJUDICALLY ERRED INALLOWING THE JURY TO CONSIDER AN INVALID AND

UNCONSTITUTIONAL 'FACTOR (B)' AGGRAVATOR DURING ITSPENALTY PHASE DELIBERATIONS.

A. Respondent's Contentions

"THE TRIAL COURT PROPERLY INSTRUCTED THE PENALTY

PHASE JURY THAT IT COULD CONSIDER APPELLANT'S CONDUCT

DURING HIS ALTERCATION WITH KERN COUNTY SHERIFF'S

DETENTION OFFICER CRISTOBAL JUAREZ AN AGGRAVATING

FACTOR UNDER SECTION 190.3, SUBDIVISION (b)." (RB 193.)

B. The Trial Court Erred in Allowing Consideration of Appellant'sNonviolent Encounter with a Jail Officer

Under California's capital sentencing scheme, a sentence of death must be

based on only valid aggravators. (Pen. Code, § 190.3.) In Mr. Lightsey'S case, the

jury used an invalid aggravator to sentence him to death, requiring reversal of his

sentence. Specifically, the prosecution argued in aggravation that merely

clenching one's fists at one's side could constitute both the crime of resisting

arrest under Penal Code section 148 and an implied threat of violence. The trial

court agreed and instructed the jury that such a fist-clenching during a search of

his cell during pretrial detention could appropriately be used to sentence Mr.

Lightsey to death as "the use or attempted use of force or violence or the express

or implied threat to use force or violence." (Pen. Code, § 190.3(b).)

As previously demonstrated (AOB 213-225), such behavior did not qualify

as a violent act aggravator. (People v. Quiroga (1993) 16 Cal.App.4th 961, 966;

Houston v. Hill (1987) 482 U.S. 451, 461; Duran v. City ofDouglas, Ariz. (9th Cir.

1990) 1372, 1378.) The trial court therefore prejudicially erred in allowing

consideration of this conduct as aggravation (People v. Boyd (1985) 38 Ca1.3d

104

762, 772-777), thereby violating Mr. Lightsey's federal constitutional rights to a

fair trial with due process of law, and to a proportionate and reliable verdict of

death (U.S. Const., Amends. 5, 6,8, and 14; Cal. Const., art. 1, §§ 7, 15, 17 and

28), and his due process right to be sentenced by the state in accordance with the

law that permits only valid section 190.3 aggravators to be used to sentence him to

death. (U.S. Const., Amends. 5, 14; Hicks v. Oklahoma (1980) 447 U.S. 343,

346.)

1. Mr. Lightsey's Actions Did Not Indicate a Threat of Violence

To counter this argument, respondent first attempts to rely on three cases

allegedly standing for the proposition that clenched fists at one's side alone can

serve as a valid factor (b) aggravator. (RB 198, citing Mathews v. Workmen's

Compensation Appeals Board (1972) 6 Cal.3d 719, 727; People v. Hughes (2002)

27 Ca1.4th 287, 383; People v. Tuilaepa (1992) 4 Cal.4th 569, 589.) However, none

of the three cited cases actually stand for this proposition.

Respondent primarily relies on a thirty-six year old civil case involving a

principal of workers compensation law, apparently finding no criminal cases to

support her position. (Mathews v. Workmen's Compensation Appeals Board,

supra, 6 Ca1.3d 719,727.) However, even Mathews does not stand for the

proposition that merely standing with one's fists clenched at one's side could

reasonable convey a threat of violence. Instead, in Mathews this Court found that

(a) charging towards another person at a full run, (b) immediately after an

"altercation" involving an abusive round of cursing and implied verbal threats, (c)

and clenching one's fists at one's side while charging towards the one with whom

the altercation had just occurred -- together -- might reasonably convey a potential

threat of violence. (/d. at p. 178 [holding such acts could reasonably lead to a

finding that a person initiated a fight between two workers].) Thus, Mathews is

plainly distinguishable from the case at bar, even assuming this civil workers

compensation law case was applicable.

The other two cases cited by respondent are even more inapplicable. In

105

Hughes, the challenged factor (b) aggravator was possessing what was determined

to be a 'shank' or prison-made weapon while incarcerated, which Mr. Lightsey

concedes would reasonably convey a threat of potential violence. (Hughes, supra,

27 Ca1.4th at p. 383.) Similarly, in Tuilaepa, the challenged factor (b) aggravator

was contraband razors hidden in an inmate's cell, which Mr. Lightsey concedes

would re~sonahlv convev a threat of Dotential violence. (Tuilaepa, supra, 4 Cal.4lhJ J &. _ _

at p. 589.) Yet Mr. Lightsey was not accused of smuggling weapons into prison,

as alleged in Hughes and Tuilaepa. Instead, he merely stood motionlessly with his

fists clenched at his sides, never raised them, never charged anyone at a run, as

occurred in the Mathews case, and therefore never made a threat of violence.

None of the three cases cited by respondent support their argument to the contrary.

Respondent next purports to rely on the Monterroso case, where an inmate

flew into an "absolute rage, shook the cell door, and screamed repeatedly that he

was going to kill the deputy with a shank the next chance he got," which Mr.

Lightsey fully agrees would be a valid threat of violence. (RB 201, citing People

v. Monterroso (2004) 34 Ca1.4lh 743, 775.) But Mr. Lightsey never made such

verbal threats to "kill" Officer Juarez "with a shank the next chance he got," but

instead stood motionless with only his fists clenched at his side. While respondent

emphasizes that Mr. Lightsey was standing close to Juarez during this exchange,

this was only due to the fact that they were both inside Mr. Lightsey's small cell.

There was certainly no evidence introduced that Mr. Lightsey moved towards

Officer Juarez in a confrontational manner. Instead, all Mr. Lightsey did was

respond to Juarez' order to get out of his bed and stand beside it.

As this Court has recently made plain in two recent cases, what is necessary

to show a threat of violence in a detention context for factor (b) purposes is an

actual threat, such as telling an officer "that he knew or could find out where they

lived, and that [the appellant] would kill them" or "threaten[ing] to kill [the

officer's] wife and burn down his house." (People v. Harris (2008) 43 Cal.4th

1269, 1311 [rejecting appellant's argument that such verbal threats did not

106

constitute a threat of violence].) Mere misconduct while detained, even if illegal,

is not a valid factor (b) aggravator unless it contains "actual or threatened

violence" against a "person." (People v. Lewis (2008) 43 Ca1.4th 415,527

[holding that illegally punching hole through wall in cell only threat to property,

and therefore assuming that improperly admitted as factor (b) evidence].)

What is instead needed are "violent episodes of resistance. [citation]."

(People v. Livaditis (1992) 2 Ca1.4th 759, 775, emphasis added.) As Mr.

Lightsey's passive actions was hardly such a violent episode of resistance it could

therefore not serve as a valid 'factor (b)' aggravator. (/d. at p. 776.) In short,

because there was no threat of violence by Mr. Lightsey, this was an invalid factor

(b) aggravator and its admission an abuse of the trial court's discretion. (People v.

Livaditis, supra, 2 Ca1.4th 759, 775.)

2. Mr. Lightsey Did Not Violate Penal Code Section 148

It must also be recalled that in order to use an unadjudicated prior act in

aggravation under factor (b), it must be both an act of violence or implied threat of

violence and a violation of criminal law. (People v. Boyd, supra, 38 Ca1.3d 762,

772 [factor (b) aggravators must constitute "criminal activity."]; People v.

Pensinger (1991) 52 Ca1.3d 1210, 1259 [same].) Respondent nevertheless argues

that Mr. Lightsey's actions constituted such a violation ofthe penal statute of

resistance to arrest, relying on the case of In re Muhammad C. (2002) 95

Cal.App.4th 1325. (RB 199.)

Yet In re Muhammed C. is plainly distinguishable from Mr. Lightsey's

case. In Muhammed, the defendant "willfully delayed" the officers in the process

of arresting a third party by (a) disobeying "five orders" from "three" different

officers, (b) by affirmatively refusing to obey the officers orders by extending "his

right hand out to the back, raising his palm towards the officers" in a gesture of

defiance, and (c) by pulling "his arm out of [the officers] grasp" when they

physically tried to stop the defendant from his contacts with the third party being

arrested. (/d. at pp. 1328-1330.) Mr. Lightsey's actions were therefore plainly

107

The Trial Court Erred In Instructing That the Conduct Was aValid Factor (b) Aggravator

distinguishable from this much more direct and obstructive conduct: he did

disobey five orders from three separate officer, nor did he pull his arm away from

the grasp of officers trying to get him to desist in his actions.

No criminal violation of section 148 occurred via Mr. Lightsey's mere

failure to respond to Deputy Juarez's commands with alacrity or enthusiasm.

(Peaplp. v. Quiroga, supra, 16 Cal.AppAth 961, 966.)27 Mr. Lightsey's acts in the

instant case could therefore not be used as a valid aggravator, because even if Mr.

Lightsey's acts could somehow be construed as an implied threat of violence,

which they cannot, a "threat of violence which is not in itself a violation of a penal

code is not admissible under factor (b)." (People v. Pensinger, supra, 52 Cal.3d

1210, 1259.)

3.

Alternatively, respondent argues that even if admitting the evidence was

erroneous, "the jury was instructed not to consider the evidence regarding the

threat to Officer Juarez unless it found the prosecution had proven all the elements

of the violation of section 148 beyond a reasonable doubt." (RB 203.) This is

misleading and incorrect.28

As this Court has recently made plain, whether conduct involves the "threat

of force or violence" is a "legal issue to be decided by the court," and the jury's

27 To hold otherwise in a published California Supreme Court opinion, asrespondent proposes, would improperly ignore decades of this Court's rulings, andsubstantially expand the reach of Penal Code sections 69 and 148 in not just thiscase, but in all cases, by criminalizing even such minor behavior.28 Moreover, even correct instructions cannot cure insufficiency of evidence. Inthe penalty phase of a capital case, this issue of sufficiency takes on an additionalcomplexity because (1) the jury makes no explicit factual finding as to theaggravator, and (2) there is no requirement that any two jurors agree on whetherthe aggravator has been proven, as long as (3) each juror finds, on his or her own,enough aggravation to outweigh the mitigation and warrant that juror's individualdecision that death is the appropriate penalty. It is impossible to determine in Mr.Lightsey's appeal whether any juror found this aggravator true or was influencedby it in voting for death.

108

role is merely to adduce if the alleged facts occurred. (People v. Howard (2008)

42 Cal.4th 1000, 1027-1028 [holding trial court properly made legal decision that

possession of a weapon in jail, if factually found to be true by jury, constituted a

valid factor (b) aggravator], emphasis added.) In Mr. Lightsey's case, the facts of

his clenching of fists by his side were not in major dispute, making the jury's

finding inevitable. It was the trial court's erroneous instruction that such facts

could properly be considered a "threat of force or violence" that was erroneous,

and this was not rendered harmless by the factual finding by the jury. (Ibid.)

C. The Error Violated Mr. Lightsey's Constitutional Rights To A FairTrial, Due Process, And A Reliable and Proportionate Verdict.

As previously demonstrated, the improper use of this invalid aggravator

caused the jury to unconstitutionally add this incident to "death' s side of the

scale," thereby rendering the penalty determination unreliable and

disproportionate, as well as violating Mr. Lightsey's rights to due process of law.

(AOB 220-222, citing Stringer v. Black (1992) 503 U.S. 222, 232; see also

California v. Brown (1987) 479 U.S. 538, 543 [discussing heightened need for

reliability in capital cases]; Woodson v. North Carolina (1976) 428 U.S. 280, 305

[same].) Given this heightened need for reliability in capital cases and the jury's

use of an invalid aggravator to sentence Mr. Lightsey to death, the death verdict is

simply too uncertain to be allowed to stand. (Woodson v. North Carolina, supra,

428 U.S. 280, 305; Gardner v. Florida (1977) 430 U.S. 349,357-358.)

Respondent argues that this violation of Mr. Lightsey's constitutional rights

has been waived. (RB 203.) However, the violation of law went to the

deprivation of his fundamental constitutional rights to a fair trial, a fair and

impartial jury, and a reliable penalty determination under the federal and state

constitutions. As such he is not precluded from raising his claim on appeal.

(People v. Vera (1997) 15 Cal.4th 269, 276-277 [holding a "defendant is not

precluded from raising for the first time on appeal a claim asserting the

deprivation of certain fundamental, constitutional rights."]; see also People v. Cole

109

(2004) 33 Cal.4th 1158, 1195, fn. 6; People v. Partida (2005) 37 Cal.4th 428, 433

439.)

D. The Error Requires Reversal

1. Standard of Review

Finally, respondent fails to respond at all to the Mr. Lightsey's reliance in

his AOB of the United States Supreme Court rule that "raln invalidated sentencing

factor (whether an eligibility factor or not) will render the sentence

unconstitutional by reason of its adding an improper element to the aggravation

scale in the weighing process unless one of the other sentencing factors enables

the sentencer to give aggravating weight to the same facts and circumstances."

(AOB 220-225, citing Brown v. Sanders (2006) 546 U.S. 212, 220, emphasis in

original.)

Respondent therefore appears to concede, as they must, that there no "other

sentencing factors" which would have enabled the jury "to give aggravating

weight to the same facts and circumstances" of the fist-clenching incident. (Ibid.)

Mr. Lightsey's sentence of death must therefore be reversed even without a

showing of prejudice.

2. The Error Was Not Harmless

As previously demonstrated (AOB 222- 225), even if the old harmless error

rule had not been overturned by Brown v. Sanders, the erroneous admission of the

invalid factor (b) could hardly be shown to be harmless beyond a reasonable

doubt. (Stringer v. Black, supra, 503 U.S. 222, 230; Chapman v. California,

supra, 38 U.S. 18,24.)

The prosecution made this incident one of the centerpieces of both her

opening statement and closing arguments in favor of sentencing appellant to death.

During opening statements, she stressed that Mr. Lightsey was worthy of death

because he had "threatened" a correctional officer while awaiting trial. (29 RT

6235.) During closing arguments she argued that "when Lightsey squared up to

Officer Juarez, clenched his hand at his sides as Officer Juarez demonstrated, then

llO

that is an implied threat to use force or violence, and you can consider that as a

factor in aggravation." (32 RT 6836-6837.) Beyond arguing that this act of

"violence" made Mr. Lightsey worthy of death, she also hammered home the

theme that it made him a severe "danger to correctional officers," because it

showed his was someone who was "willing to fight with a correctional officer."

(32 RT 6849; see also 32 RT 6850)

Such a "heavy emphasis" on an invalid aggravator during "closing

arguments" is one of the main tools to analyze the prejudice of the admission of

such an invalid aggravator. (People v. Walker, supra, 47 Cal.3d 605, 640 [error

harmless where no emphasis on invalid aggravator during closing arguments]; see

also People v. Lewis, supra, 43 Cal.4th 415, 527 [error harmless where only

"played a very small role in the prosecutor's closing argument"].) Here the

prosecution's heavy emphasis on the invalid aggravator during closing arguments

was extremely prejudicial. (Lewis, supra, 43 Cal.4th 415,527.)

Mr. Lightsey's sentence of death must therefore be reversed, as the use of

this invalid aggravator cannot be shown to be harmless beyond a reasonable doubt.

(Chapman v. California, supra, 38 U.S. 18,24.) Even under California's lesser

standard, the prosecution's reliance on this invalid aggravator as one of the

primary arguments for death makes plain that there was a "reasonable possibility"

that the jury would have returned a life sentence absent the error. (People v.

Brown (1988) 46 Cal.3d 432, 447.)

II

111

x.THE TRIAL COURT'S DENIAL OF MR. LIGHTSEY'S REQUEST TO

ADDRESS THE JURY BEFORE HIS PENALTY VERDICT WASANNOUNCED VIOLATED HIS CONSTITUTIONAL AND STATUTORYRIGHTS TO ALLOCUTION AND REQUIRES THE REVERSAL OF HIS

JUDGMENT OF DEATH

A. Rp.sponclfmt's Contention

"The trial court properly refused to allow appellant to address the jury

before the penalty verdict was announced." (RB 203.)

B. Criminal Defendants In California Now Have The Constitutional andStatutory Rights To Make A Personal Statement In Mitigation, ButOnly IfThe Defendant Makes The Statement Under Oath And IsSubject To Cross-Examination

In his Opening Brief, Mr. Lightsey cited the Court of Appeals' decisions in

In re Shannon B. (1994) 22 Cal.AppAth 1235, 1242-1246, and People v. Evans

(2006) 135 Cal.AppAth 1178, 1182-1186, in support of his argument that the trial

court in Mr. Lightsey's case erred by denying his right to allocution before the

jury. (Opening Brief at p. 236.) Respondent noted that this Court granted review

in Evans. (RB 218, fn. 23.) Since the filing of Respondent's Brief in November

2007, this Court decided Evans and disapproved the decision in Shannon B.

In People v. Evans (2008) 44 Ca1.4th 590, this Court said

"In legal parlance, the term 'allocution' has traditionally meant the trialcourt's inquiry ofa defendant as to whether there is any reason whyjudgment should not be pronounced. (Citations.) In recent years, the word'allocution' been often used for a mitigating statement made by adefendant in response to the court's inquiry. (Citation.) Here, we applythe term's traditional meaning."

(ld., at p. 592, fn. 2, original italics.) The issue in Evans was whether a criminal

defendant in California has the right under Penal Code section 1200 to make an

unsworn personal statement in mitigation of punishment.

The lower court in Evans held that Section 1200 limits a defendant's ability

112

to make a statement to the matters enumerated in Section 1201 [judgment should

not be imposed because the defendant is insane, the trial court should grant a

motion in arrest of judgment, or the court should order a new trial]. (ld., at p.

594.) According to this Court, "California law [through Penal Code section 1204]

gives a defendant the right to make a personal statement in mitigation of

punishment but only while under oath and subject to cross-examination by the

prosecutor." (ld., at pp. 592-593.)

The Evans court also addressed the decision in In re Shannon B., supra, 22

Ca1.4th 1235, that held Penal Code sections 1200 and 1201 together give

defendants not only the right to assert insanity or grounds in arrest of judgment or

for a new trial, '''but also the right to make a personal statement and present

information in mitigation of punishment.' (Citation.)" (People v. Evans, supra, 44

Ca1.4th at p. 597.) After recognizing the goal of statutory construction is to

implement the Legislature's intent, the Court held that Section 1200 does not by

its express language provide such a right, and disapproved the decision in Shannon

B. on that basis. (ld., at p. 598, fn. 5.) Instead, this Court held that Section 1204

satisfies a defendant's rights to due process under the Fourteenth Amendment to

the United States Constitution by allowing him to be heard during sentencing at a

meaningful time and in a meaningful manner "to make a sworn personal statement

in mitigation that is subject to cross-examination by the prosecution." (ld., at p.

600, original italics.)

C. By Enacting Sections 1200 And 1204 And Thereafter ModifyingSection 1204, The Legislature Intended That Evidence Offered InAggravation And Mitigation Be Made Through Testimony Under OathAnd Subject To Cross-Examination But Did Not Intend By ThoseProvisions To Require That A Defendant's Personal Statement InMitigation Be Subject To Such Requirements

In Evans, the Court discussed the Legislature's enactment of Section 1200

in 1872 when the prevailing legal practice in England, the United States, and

California "was that in response to the trial court's inquiry whether there was any

113

legal cause why judgment should not pronounced, the defendant could make a

personal statement asking for lesser punishment." (People v. Evans, supra, 44

Ca1.4th at p. 597.) Contrary to this Court's conclusion. The Legislature's

enactment of Section 1204 did not evidence an intent that a defendant's personal

statement offered in mitigation be subject to oath and cross-examination.29

It is well-settJerl th::lt the p"oal of statutorv construction is to imolement theu ~ ~

intent of the Legislature that enacted the statute, and such construction presumes

the Legislature meant what it said, and the plain meaning of the statute controls.

(People v. Evans, supra, 44 Ca1.4th at p. 597.) Further, when the Legislature

enacted Section 1200 and 1204, it was "presumed to be aware of "'judicial

decisions already in existence, and to have enacted or amended a statute in light

thereof. [Citation.]" , [Citation.]" (People v. Giordano (2007) 42 Ca1.4th 644,

659.) Moreover, when the Legislature uses a term well-understood by the

common law, courts must presume that the Legislature intended the common law

meaning. (People v. Newby (2008) 167 Cal.AppAth 1341, 1346-1347, citing

People v. Ogen (1985) 168 Cal.App.3d 611,622.) As noted by the Court of

Appeal in C.R. v. Tenet Healthcare Corp. (2009) _ Cal.AppAth _ [2009 WL

19130]

"Our Supreme Court has explained: "'As a general rule, "[u]nlessexpressly provided, statutes should not be interpreted to alter the commonlaw, and should be construed to avoid conflict with common law rules.[Citation.] 'A statute will be construed in light of common law decisions,unless its language'" 'clearly and unequivocally discloses an intention todepart from, alter, or abrogate the common-law rule concerning theparticular subject matter... .' [Citations.]" [Citation.]' (Citation.)Accordingly, "'[t]here is a presumption that a statute does not, byimplication, repeal the common law. [Citation.] Repeal by implication is

29 Moreover, there is no evidence in the appellate record that Mr. Lightsey wouldnot have agreed to make his allocution under oath and subject to subsequent crossexamination if these conditions had been offered to him. Indeed, Mr. Lightsey hadalready testified under oath at the penalty phase, and it is plain from the record thathe believed he was telling the truth and had no fear of cross-examination. Instead,the trial court refused to let Mr. Lightsey address the jury directly under any terms.

114

recognized only where there is no rational basis for harmonizing twopotentially conflicting laws." (Citations.)'''

(2009 WL 19130 at p. 10.)

Section 1204 was also enacted in 1872, and currently provides as follows:

"The circumstances [in aggravation and mitigation of punishment] shallbe presented by the testimony of witnesses examined in open court, exceptthat when a witness is so sick or infirm as to be unable to attend, hisdeposition may be taken by a magistrate of the county, out of court, uponsuch notice to the adverse party as the court may direct. No affidavit ortestimony, or representation of any kind, verbal or written, can be offeredto or received by the court, or a judge thereof, in aggravation or mitigationof the punishment, except as provided in this and the preceding section.This section shall not be construed to prohibit the filing of a written reportby a defendant or defendant's counsel on behalf of a defendant if such areport presents a study of his background and personality and suggests arehabilitation program. If such a report is submitted, the prosecution orprobation officer shall be permitted to reply to or to evaluate theprogram."

(West's Ann. Cal. Pen. Code § 1204.) In Evans, this Court concluded that Section

1204 requires the court to receive evidence either in aggravation or mitigation of

punishment only through the testimony of witnesses examined in court, and the

Legislature intended that a defendant's right to make a statement in mitigation of

punishment be made under oath and subject to cross-examination. Mr. Lightsey

respectfully disagrees.

The Legislature modified Section 1204 in 1971 in pertinent part as follows:

"This section shall not be construed to prohibit the filing of a writtenreport by a defendant or defendant's counsel on behalf of a defendant ifsuch a report presents a study of his background and personality andsuggests a rehabilitation program. If such a report is submitted, theprosecution or probation officer shall be permitted to reply to or toevaluate the program." (West's Ann. Cal. Pen. Code § 1204.)

(West's Ann. Cal. Pen. Code § 1204, Amended by Stats. 1971, c. 1080, p. 2052, §

1.) By providing the defendant may submit a written report regarding his or her

appropriate punishment without expressly requiring it be under oath or the report's

115

preparer being subject cross-examination, the Legislature intended in Section 1204

that defendants be allowed to offer reasons in mitigation of punishment without

the requirement of oath or cross-examination but subject to the prosecution's right

to reply and rebut those reasons.

When enacting Section 1200 in 1872, the Legislature included the phrase

"anv leQal cause to show why sentence iudgment should not be pronounced" in theJ ....... .,... _ _

statute, and in 1872 this phrase meant that defendant had the right to make a

personal statement in support of mitigation without any requirement it be under

oath or subject to cross-examination. (See People v. Evans, supra, 44 Ca1.4th at p.

597.) When the Legislature enacted Section 1204 in 1872 and modified it in 1971,

the statute's language did not suggest the Legislature intended it to alter or

abrogate the common law's "legal practice" of allowing a defendant the right to

offer a personal statement in support of mitigation without requiring the statement

be under oath or subject to cross-examination. Instead, there is a rational basis for

harmonizing Sections 1200 and 1204 - the Legislature intended by these statutes

to treat a defendant's personal statement concerning reasons for mitigation of

punishment differently from "evidence" offered in support of aggravation or

mitigation of punishment. Because it is presumed that a statute does not by

implication repeal the common law and the above harmonization is consistent with

the common law and the Legislature's intent to treat a defendant's personal

statement offered in mitigation differently from evidence offered in aggravation or

mitigation, this Court's determination that the Legislature intended to allow a

defendant to make a personal statement but only on oath and subject to cross

examination is incorrect.

In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme

Court extensively discussed the common law in the context of the right to

confrontation. According to the high court, the Sixth Amendment demands what

the common law required in the context of the right to confrontation and cross

examination. The same rationale should apply here to defendant's right to make a

116

personal statement without being subject or oath or cross-examination. The

common law right to be heard through a personal statement in mitigation of

punishment at a meaningful time and in a meaningful way requires, in the context

of the Fourteenth Amendment's due process clause, that a defendant be allowed to

make his personal statement free of the constraints that the statement be made

under oath and subject to cross-examination. As sagely noted by the district court

in United States v. Chong (D.Hawaii 1999) 104 F.Supp.2d 1232, 1236, "the fear of

cross-examination might compel capital defendants to forego addressing the jury

and offering pleas for mercy, expressions of remorse, or some explanation that

might warrant a sentence other than death."

This concern finds further support in the concurring and dissenting opinion

in State v. Colon (2004) 272 Conn. 106, [864 A.2d 666, 842-846], where Justice

Katz relied on the rationale in Chong to "conclude that the common-law right of

allocution entitles a capital defendant personally to address the sentencing jury and

plead for mercy without subjecting himself to cross-examination." In addition,

Justice Katz correctly observed that the purposes of capital sentencing schemes are

furthered by the right to allocution because it protects the defendant's interest in

"receiving individualized consideration when faced with the death penalty. [Fn.

omitted.]" (Id., at pp. 845-846.) Finally, Justice Katz noted, consistent with

Section 1204, that the right to allocution is not unlimited because it should involve

only a plea for mercy based on facts already in evidence and uncontested by the

prosecution, combined with a limiting instruction to preserve the reliability and

accuracy of the capital sentencing proceeding. (ld., at p. 846, fn. 6.)

D. Prejudice

Mr. Lightsey's penalty jury deliberated only briefly before announcing they

had reached a verdict of death. Though Mr. Lightsey testified under oath at the

penalty phase of his trial and was subject to cross-examination, an inspection of

the entire record establishes that he struggled throughout his trial to address the

117

jury, but his attempts to do so were consistently thwarted by the court, counsel,

and/or the bailiff. Dr. Pierce concluded that Mr. Lightsey was seriously mentally

ill and opined that he did not deserve the death penalty for that reason. Because

Mr. Lightsey was prevented from addressing the jury in allocution, the jury was

denied the opportunity to see first hand the nature and extent of his mental illness

when he addressed them in a oersonal statement in decidini! whether to s:riv~ ~ff~r.t.L u u· --.

to the doctor's opinion he should not be put to death.

It takes no stretch of the imagination to conclude that Mr. Lightsey's

allocution would have involved his claims that he did not commit the crimes

against Mr. Compton and he was being "railroaded" by the criminal justice system

in Kern County, the same things he tried to express many times throughout his

trial but was prevented from fully articulating. As such, Mr. Lightsey's allocution

would have consisted of information considered and rejected by the jury that

found him guilty of the charged offenses and not matters contested by the

prosecution at this stage of the proceedings.

In its brief [RB 204-216], respondent detailed Mr. Lightsey's conduct

throughout his portions of trial and the trial court's attempts to restrain his

comments and behavior. Dr. Pierce believed that Mr. Lightsey was seriously

mentally ill and not deserving of the death penalty, and his conduct throughout the

trial, including when the verdicts were read ,graphically illustrated the extreme

nature of Mr. Lightsey's mental illness. The trial court's instruction to the jury to

ignore Mr. Lightsey's behavior when the verdict was read (8 CT 2307; 32 RT

6926) could reasonably have persuaded the jury to ignore his conduct throughout

his trial and thereby ignore evidence establishing the extreme nature of his mental

illness. For this reason, he trial court's refusal to allow allocution is not harmless

under the federal or state standards of review and requires that his judgment of

death be reversed. (Chapman v. California (1967) 386 U.S. 18,24; People v.

Watson (1956) 46 Ca1.2d 818, 836.)

II

118

XI.

MR. LIGHTSEY'S SENTENCE OF DEATH MUST BE REVERSEDBECAUSE THE TRIAL COURT PREJUDICALLY ERRED IN FAILINGTO INSTRUCT THE JURORS TO DISREGARD THE FACT THAT HEWAS VISIBLY SHACKLED THROUGHOUT HIS PENALTY PHASE

PROCEEDINGS.


"THE TRIAL COURT PROPERLY DID NOT INSTRUCT THE JURY

SUA SPONTE TO DISREGARD APPELLANT'S SHACKLES BECAUSE THE

SHACKLES WERE NOT VISIBLE TO THE JURY." (RB 221.)

B. The Shackles Were Visible to the Jury During the Penalty Phase,Requiring Instruction Pursuant to CALJIC 1.04.

As previously demonstrated in Argument 7, Mr. Lightsey was visibly

shackled throughout his guilt phase proceedings. These same procedures of using

visible restraints and shackles were used during the penalty phase as well. The

prejudice resulting from the trial court's error in failing to instruct the jurors to

disregard the fact that Mr. Lightsey was visibly shackled was amplified due to the

fact that Mr. Lightsey testified during the penalty phase, something that did not

occur during the guilt phase. (29 RT 6338 - 30 RT 6522.)

As previously demonstrated, from the pre-trial proceedings through the

penalty phase, Mr. Lightsey was "hand-cuffed" and had waist "shackles" bolted to

the floor (4/7/94 RT 13; 3/23/95 RT 116-118; 8/2/94 RT 215; 4/5/95 RT 347;

3/23/95 RT 115; 6 RT 1166-1167.) The system of shackles and cuffs was so

cumbersome that they made "noise" so loud that it was "interrupting the Court

with" Mr. Lightsey's "chains." (1 RT 116.)

Respondent argues that this system of shackling was not visible during the

penalty phase. (RB 221-222.) Yet the trial court stated on the record during the

penalty phase of trial that Mr. Lightsey continued to have on him this same system

of "shackles that he had been in during the proceedings here in the courtroom" as

119

in the guilt phase of the trial. (33 RT 6941, emphasis added.) Based upon the

aforementioned facts, the jurors undoubtedly heard and saw Mr. Lightsey's

shackles during the penalty phase, as they had earlier seen and heard them during

the guilt phase. (See Arg. 7.)

The trial court was therefore required to "instruct the jury sua sponte that

such restraints shall have no bearing on the determination of defendant's guilt."

(People v. Duran, supra, 16 Cal.3d 282,291-292; People v. Mar (2002) 28 Cal.4th

1201, 1217 [accord]; see also People v. George (1994) 30 Cal.AppAth 262, 272

273; People v. Jackson (1993) 14 Cal.AppAth 1818, 1825-1826; People v.

Thompkins (1987) 195 Cal.App.3d 244,255; CALJIC 1.04; ABA Standards

(1968) Trial by Jury, § 4.1(c).)

This trial court duty to instruct the jury pertaining to a defendant's restraints

is equally applicable in the penalty phase. (See Duckett v. Godinez (9th Cir. 1995)

67 F.3d 734, 739 [shackling rules apply to penalty phase of trial]; People v. Givan

(1992) 4 Cal.AppAth 1107, 1117 [Duran rule applies to bifurcated enhancement

proceedings], citing Solomon v. Superior Court (1981) 122 Cal.App.3d 532,535;

Deck v. Missouri (2005) 544 U.S. 622 [125 S.Ct. 2007, 2015-2016] [same]; Comer

v. Schriro (9th Cir. 2007) 480 F.3d 960,990-992 [same].) The trial court's error in

failing to admonish the jury therefore violated Mr. Lightsey's state and federal

constitutional rights to a fair trial, to due process of law, and to a proportionate and

reliable verdict of death, requiring reversal of his verdict and sentence of death.

(U.S. Const., Amends. 5,6, 8, and 14; Cal. Const., art. 1, §§ 7, 15, 17, and 28).


As previously demonstrated in appellant's opening brief, it is well settled

that "the shackling of a criminal defendant will prejudice him in the minds of the

jurors ... his appearance before the jury in shackles is likely to lead the jurors to

infer that he is a violent person disposed to commit crimes of the type alleged."

(People v. Duran (1976) 16 Cal.3d 282, 290.) This is especially plain given that

Mr. Lightsey testified during the penalty phase, and such shackles are especially

120

visible when an appellant has "testified." (People v. McDaniel, supra, 159

Cal.App.4th 736, 746.) Put another way, the jurors perceptions of a testifying

defendant are highly "vulnerable to the impact of seeing him in shackles" and

negatively impact their "percep[tion]" of "his credibility." (People v. Soukomlane,

supra, 162 Cal.App.4th at pp. 232-233.)

Accordingly, the error in failing to admonish the jury to disregard Mr.

Lightsey's shackles cannot be shown to be harmless beyond a reasonable doubt.

(Comer v. Schriro, supra, 480 F.3d 960,992; People v. Soukomlane, supra, 162

Cal.App.4th 214, 232-233; People v. facla, supra, 77 Cal.App.3d 878, 891, citing

Chapman v. California, supra, 386 U.S. 18,24; People v. Duran, supra, 16 Ca1.3d

282,296, fn. 15[same].) But for the trial court's error, especially considering the

substantial mitigating evidence introduced on behalf of Mr. Lightsey, the jurors

might well have returned a verdict of life without parole.

Mr. Lightsey's sentence of death must be reversed.

II

121

XII.

THE TRIAL COURT'S FAILURE TO RULE ON TWO OF THEGROUNDS RAISED IN MR. LIGHTSEY'S MOTION FOR NEW TRIALREQUIRES THAT HIS CASE BE REMANDED TO THE TRIAL COURT

FOR RENEWED HEARINGS ON THIS MOTION.


"THE TRIAL COURT PROPERLY DENIED APPELLANT'S MOTION

FOR NEW TRIAL." (RB 222.)

B. The Trial Court Erred By Failing To Rule On Two Of The GroundsRaised In Mr. Lightsey's Motion For New Trial.

Respondent first contends that Mr. Lightsey's argument on this claim was

based on the fact that "the trial court did not state its reasons for denying the

motion and the grounds of prosecutorial misconduct and error of law." (RB 224.)

This is incorrect. Instead, in his opening brief Mr. Lightsey demonstrated that the

trial court failed to even reach the merits of, much less grant or deny, the

following issues raised in the motion: (a) "the testifying District Attorney was

guilty of prejudicial misconduct before the jury" and that (b) the court "erred in

the decision of a question of law" by denying appellant's section 995 motion.

(AOB 247, citing 8 CT 2357.)

This failure to rule was erroneous, not subject to an abuse of discretion

analysis as no discretion was ever exercised, and requires reversal of appellant's

guilt phase convictions and sentence of death, and the remanding of the case to the

trial court for consideration of the two unadjudicated issues. The error violated

Mr. Lightsey's state and federal constitutional rights to due process oflaw and a

proportionate and reliable verdict of death. (U.S. Const., Amends. 5, 6, 8, and 14;

Cal. Const., art. 1, §§ 7,15,17 and 28.)

1. The Trial Court Erred in Failing to Rule on Appellant's NewTrial Motion Allegations Regarding Prosecutorial Misconduct

Perhaps recognizing the weakness of its preliminary argument, respondent

then alternatively concedes that the trial court may have failed to rule on the new

122

trial motion, but argues such failure was proper. (RB 225.) Specifically,

respondent alleges that the type of prosecutorial misconduct alleged (Mr.

Lightsey's original prosecutor in the case perjuring himself as a witness during

trial) is not envisaged in the provisions of section 1181, subdivision (5). (Ibid.)

However, respondent cites no cases in support of this assertion, presumably

conceding there are no such cases available to support this argument. Moreover,

as previously demonstrated, the cases cited by the trial counsel in support of this

assertion were completely inapplicable and provided no support for this

contention. (AOB 250, noting inapplicability of People v. French (1939) 12

Cal.2d 720; People v. Zirbes (1936) 6 Cal.2d 425; People v. Glenn (1950) 96

Cal.App.2d 859.)

More to the point, it is well-settled that even if such misconduct is not

included in the statutory grounds listed in section 1181, "the statute should not be

read to limit the constitutional duty of trial courts to ensure that defendants be

accorded due process oflaw." (People v. Fosselman (1983) 33 Cal.3d 572, 582

[lAC can be raised via motion for new trial, even though not a statutory ground for

such relief].) As California's legislature "has no power, of course, to limit this

constitutional obligation by statute," a trial court can and should consider any

grounds raised via a motion for new trial that involves a violation of the due

process right to a "fair trial." (Ibid.) The trial court therefore erred in failing to

even consider or rule upon Mr. Lightsey's claim of prosecutorial misconduct.

2. The Trial Court Erred in Failing To Rule on Appellant's NewTrial Motion Regarding the Denial of His Section 995 Motion

Respondent next argues that the trial court properly failed to rule on Mr.

Lightsey's second ignored claim from his motion for new trial. (RB 226-227.)

Relying on People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, respondent

argues that the issue of the denial of a "section 995 motion" cannot be raised via

"a new trial motion," but instead can only be raised "pretrial by writ." (RB 226.)

Yet Edmonds did not deal with section 995 motions at all, instead dealing solely

123

with search and seizure issues related to section 1538.5. (Edmonds, supra, 4

Cal.3d at pp. 610-612.) Moreover, as he noted in his appeal, Mr. Lightsey did

raise this issue by interlocutory writ, before again raising it in both this appeal

from his judgment and in his motion for new trial. (AOB 252, citing 1 Supp. CT

45; 22 Supp. CT 6455-6788.)

Respondent next cites a series of inapplicable or distinguishable cases

holding that the denial a motion for new trial is not an appealable order, as such

new trial motion denials can only be heard as part of appeals from judgment. (RB

225-226, citing People v. Duncan (1942) 50 Cal.App.2d 184, People v. Johnston

(1940) 37 Cal.App.2d 606.) However, respondent misses the point that Mr.

Lightsey is raising this issue as part of his appeal from the final judgment, not as a

separate appeal of the order denying the new trial motion.

Beyond this fact, the cases cited by respondent in many aspects

affirmatively support Mr. Lightsey's argument that the denial of a non-statutory

demurrer to the indictment (or, implicitly, a statutory motion to set aside the

indictment) can be heard via a post-trial motion. In Duncan, for example, the

appellate court held that "objections which may be presented by demurrer before

plea, may further be made available after verdict by motion in arrest of judgment"

and denied the appeal only on the grounds that is was appeal from an order

denying a new trial motion, but conceded it could have heard the issue "on appeal

from the final judgment" as Mr. Lightsey appeals here. (Duncan, supra, 50

Cal.App.2d 184, 186, emphasis added.) Similarly, in Johnston, the court held that

both the denial of a "demurrer" and the denial of a "motion for new trial" could be

heard on appeal from a verdict, though not from a mere order of probation.

(Johnston, supra, 37 Cal.App.2d 606, 609.)

To the extent respondent relies on People v. Turner (1870) 39 Cal.3d 370,

which arguably does stand for the proposition that an attack on the indictment

cannot be the subject of a motion for new trial, it must be noted that the holding on

the case actually dealt with juror misconduct, making any other finding mere dicta.

124

(Turner, supra, 39 Cal.3d 370, 373-374.) Indeed, the concurring opinion in this

case expressly noted that anything unrelated to the actual ruling on jury

misconduct was nothing more than "obiter dictum." (ld. at p. 778 [conc. opn.

Rhodes, J.].)

More to the point, Turner is an almost l40-year-old case from the era of

form pleading, predates the existence of either section 995 or section 1181, and

was issued during a period in the history of California law when defects in the

raising of the indictment required per se reversal of a judgment. It is wholly

inapplicable to the modern legal regime where such procedures have been

institutionalized by sections 995 and 1181 and defects in the raising of the

indictment are only grounds for reversal where actual prejudice is shown. (People

v. Pompa-Ortiz, supra, 27 Cal.3d 519.) Indeed, modern jurisprudence is plain that

denials of pre-trial motions may be properly raised as the grounds for a motion for

new trial. (People v. Sherrod, supra, 59 Cal.App.4th 1168, 1175 [denial of pre

trial motion for continuance proper grounds of motion for new trial].)

The trial court's failure to rule on this portion of the new trial motion was

therefore erroneous, not subject to an abuse of discretion analysis as no discretion

was ever exercised, and requires reversal of appellant's guilt phase convictions

and sentence of death, and the remanding of the case to the trial court for

consideration of the two unadjudicated issues.

C. The Error Both Denied Appellant a Fair Trial and Otherwise CausedHim Prejudice.

Finally, respondent argues that any error was harmless, as Mr. Lightsey has

not made a "claim on appeal that the evidence was insufficient to support the

guilty verdicts." (RB 228.) Yet, as respondent concedes in another portion of

their brief, the actual standard of review on appeal is whether the error caused the

defendant to be "deprived of due process" or where he "suffers prejudice." (RE

227, citing People v. Pompa-Ortiz, supra, 27 Ca1.3d 519,529.)

Here, both errors were extremely prejudicial, constituting a denial of the

125

right to due process and a fair trial. Unique to the facts of Mr. Lightsey's case, it

was prejudicially impossible for Mr. Lightsey to absolve the errors from the

preliminary examination through testimony at trial, because that preliminary

examination was the last time that Deputy District Attorney Somers backed Mr.

Lightsey's alibi defense. As previously demonstrated (Arg. 2), Mr. Lightsey had a

very strong l'Ilihi -- which would have cleared him of the murder -- if Somers had

remained consistent to his testimony from the preliminary examination. Given

Somers perjurious change of testimony before the jurors during trial, however, Mr.

Lightsey was prejudiced by not being able to later rely on the original truthful pro

defense testimony by Mr. Somers given in the preliminary examination. At a

minimum, Mr. Lightsey was therefore denied a fair trial. (People v. Sherrod,

supra, 59 Cal.AppA1h 1168, 1175.)

D. Conclusion

The trial court prejudicially erred in failing to rule on two of the grounds

raised in Mr. Lightsey's motion for new trial. This misconduct violated Mr.

Lightsey's state and federal constitutional rights to an impartial jury, due process

of law, and a reliable and proportional sentence of death. (U.S. Const., Amends.

5,6, 8, and 14; Cal. Const., art. 1, §§ 7, 15, 17 and 28.) Accordingly, the

judgment and sentence must be reversed and the cause remanded to the superior

court with directions to vacate the order denying the motion for new trial and to

reconsider the motion. (People v. Fosselman, supra, 33 Cal.3d 572, 584.)

II

126

XIII.

THE AUTOMATIC APPEAL PROCESS IN CALIFORNIA IS TOOTAINTED BY POLITICAL CONSIDERATIONS TO ENSURE MR.

LIGHTSEY'S CONSTITUTIONAL RIGHTS ARE RESPECTED,REQUIRING PER SE REVERSAL OF HIS SENTENCE OF DEATH.


"THE APPELLATE REVIEW PROCESS IS NOT IMPERMISSABILY

INFLUENCED BY POLITICAL CONSIDERATIONS IN CAPITAL CASES."

(RB 228.)

B. The Politicization Of The Automatic Appeal Process In CaliforniaRequires Reversal of Mr. Lightsey's Convictions

Because this issue has been fully briefed by the parties [Respondent's Brief

at p. 228; Opening Brief at pp. 263-275], Mr. Lightsey submits this claim on the

basis of his argument presented in his Opening Brief, except to note one additional

source of support for the argument published since the filing of his appeal.

A detailed academic study of the role of public opinion in states like

California that have judicial retention elections has concretely proven that such

elections inevitably lead to higher rates of death row affirmances. (Brace & Boyea

"State Public Opinion, the Death Penalty and the Practice ofElecting Judges"

(2009) American Journal ofPolitical Sciences, Vol. 52, No.2, pp. 360-371.)

In their comprehensive research, Professors Brace & Boyea factored out all

other possible influences and showed through their work that capital review

systems such as the one used in California are prone to improper influences

inconsistent with proper principles of due process. (Ibid.) Given the flawed

nature of the capital review procedure in Mr. Lightsey's case, his sentence of

death must be reversed due to this structural defect.

II

127

XIV.

MR. LIGHTSEY'S VERDICT AND SENTENCE OF DEATH MUST BEREVERSED BECAUSE THEY WERE OBTAINED IN VIOLATION OF

INTERNATIONAL LAW.


"APPELLANT WAS NOT DENIED HIS INTERNATIONAL RIGHTS,"

(RB 228.)

B. Mr. Lightsey's Rights Under International Law Were Violated


at pp. 228-229; Opening Brief at pp. 276-294], Mr. Lightsey submits this claim on

the basis of his argument presented in his Opening Brief.

II

128

xv.

THE CAPITAL SENTENCING STRUCTURE IN CALIFORNIA, BOTHGENERALLY AND AS APPLIED TO THE SPECIFICS OF MR.

LIGHTSEY'S CASE, VIOLATES APPELLANT'S RIGHTS UNDER THEUNITED STATES CONSTUTION TO TRIAL BY JURY, DUE PROCESSOF LAW, FREEDOM FROM CRUEL AND UNUSUAL PUNISHMENT,

AND A RELIABLE VERDICT, REQUIRING REVERSAL OF HISSENTENCE OF DEATH.


"CAPITAL SENTENCING DID NOT VIOLATE APPELLANT'S

CONSTITUTIONAL RIGHTS." (RB 229.)

B. California's Death Penalty Statute Violates the U.S. Constitution



the basis of his argument presented in his Opening Brief.

II

129

XVI.

CUMULATIVE ERROR


"THERE IS NO CUMULATIVE EFFECT OF ERRORS" (RB 238.)

B. The Cumulative Error In Mr. Lightsey's Case Requires TheReversal Of The Entire .Tudgment Against Him



the basis of the argument from his Opening Brief.

II

130

CONCLUSION

Respondent's brief failed to overcome the arguments raised by Mr.

Lightsey regarding the many errors that improperly and unconstitutionally

thwarted him from presenting his unusually strong alibi defense and raising the

issues related to the lack of reliable evidence directly linking him to the crime.

But for these errors, Mr. Lightsey had a very real chance of being found innocent

during the guilt phase of his trial.

Respondent's brief also failed to rebut Mr. Lightsey's arguments that the

penalty phase of his trial was equally distorted by a series of constitutional and

state law errors that denied him the opportunity of presenting a powerful case in

mitigation based on his mental impairments, his mitigating social history, and a

very real case of lingering doubt.

As previously demonstrated III his Opening Brief, Mr. Lightsey's

convictions and judgment of death therefore cannot stand and must be reversed.

Dated: February 28, 2009

Respectfully submitted,

LAW OFFICES OF E. MICHAELLINSCHEID

0g 1J~Erik N. Larson

131

Case Name:Case Number:

DECLARATION OF SERVICE

People v. Christopher Charles LightseyCSC Case No. S048440

I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years and not a partyto the within action; my place of employment and business address is 345 FranklinStreet, San Francisco, CA 94102.

On March .-1, 2009, I served the attached

APPELLANT'S REPLY BRIEF

by placing a true copy thereof in an envelope addressed to each of the personsnamed below at the addresses shown, and by sealing and having saidenvelope(s) deposited in a United States Postal Service mailbox at SanFrancisco, with postage thereon fully prepaid.

Clerk of the Court (for Hon. Kelly)Kern County Superior Court1415 Truxton AvenueBakersfield, CA 93301

Office of the Attorney GeneralATTN: DAG Judy Kaida, Esq.1301 I Street, Suite 110P.O. Box 944255Sacramento, CA 94244-2550

Mr. Christopher Charles LightseyCDC# H-89209San Quentin State PrisonSan Quentin, CA 94964

California Appellate ProjectATTN: Linda Robertson, Esq.101 Second Street, Suite 600San Francisco, CA 94105

Kern County D.A.'s OfficeATTN: Lisa Green, Esq.1215 Truxton AvenueBakersfield, CA 93301

Robert Bryan, Esq.Law Offices of Robert Bryan2088 Union Street, Suite 4San Francisco, CA 9412

I declare under penalty of perjury that the foregoing is true and correct.

Executed on March 4 ,2009, at San Francis~o, ~al/\nia

6, rYJ;chttJ~~DECLARANT

132

WORD COUNT CERTIFICATION

Pursuant to California Rules of Court, I hereby certify that this reply brief is

composed in 13-point times new roman font and consists of 40,071 words.

8dllLErik N. Larson

133

bupreme court - california

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